While Americans have been occupied with daily news of one overreach after another by Obama's new administration, the issue of gay marriage has generally stayed under the radar. When he was out campaigning for President, Obama understood the politically explosive nature of gay marriage and decided that getting elected was more important than being honest. He contorted himself to say the he supported the definition of marriage as one man and one woman, while at the same time letting homosexual activists groups know that he opposed the federal law which defines marriage as just that. Among normal people this would be understood as being duplicitous at best. The problem Obama has at the moment is that as the nation's chief law enforcement officer his job is to defend federal law, which at this point includes the 1996 Defense of Marriage Act (or DOMA). Solution? Make a half-baked defense of the law and tell everyone, even the judges before which you're defending the law, that you think it is wrong and should be overturned. In briefs related to a recent case in California, Obama's administration stated that it supports the repeal of DOMA. In their own filings with the court in defense of the law, the Justice Department went out of its way undermine a conservative argument for the law by stating that "the United States does not believe that DOMA is rationally related to any legitimate government interest in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality." In other words, "we think it's based on discrimination, but it's the law, so we'll pretend to defend it since that's our job". The Justice Department's own spokesman admitted as much in late August when she stated "the administration believes the Defense of Marriage Act is discriminatory and should be repealed". Well. I'm pretty sure that some large majorities of Americans in well over thirty states would object to such a statement being made by their government on their behalf. And you can be sure they've got their best lawyers on the case. One can just imagine the rigorous process of determining which Justice Department lawyer gets to mount the government's DOMA defense in court, (the guy with the least years of experience...writing his briefs on Monday mornings after long weekends, etc.). By way of background, DOMA was passed in 1996 (a Clinton re-election year) as a compromise (by moderates and some liberals) to avoid passage of a federal constitutional amendment. It was a tactical retreat. Opponents correctly determined that passage of DOMA would take some of the steam out of the push for a federal marriage amendment, (which had been building at the time due to Hawaii's attempts to legalize gay marriage). They knew that a law is easier to change in the future than an amendment, and that it can always be overturned by the right Supreme Court. Much better to gamble on getting a new liberal majority in Congress someday. And now that day has arrived. The problem is that there are over thirty plus states that have passed statewide votes (amendments or referendums) banning gay marriage. Which means there are a lot of "red" and "purple" state Democrats who want no part of a debate over gay marriage. They're all too happy to let the judiciary do their dirty work for them, freeing them to rant and rave that they were on the people's side, depending on what people they're talking to at the moment. The good news (politically) for Obama is that he doesn't have to fight it out in Congress just yet. He's currently spending all of his political capital on health care reform, but in the meantime he can let his Justice Department "throw" the case to defend the law and roll the dice that Anthony Kennedy might wake up on the left side of the bed the morning the high court ultimately decides the issue. If the law is overturned, problem solved. If it's upheld, then he can go at it with the Congress - after he's re-elected. In the meantime, the issue is coming soon to a federal courtroom near you. And Obama's Justice Department will be there to mount a tepid defense on DOMA's behalf.
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