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View Diary: John Boehner's job creation plan: Defending anti-gay marriage law (56 comments)

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  •  Here's why: (4+ / 0-)
    [T]here must be some basis

    Obama is saying here that he believes the standard of constitutional scrutiny applicable to classifications based on sexual orientation is not ordinary rational basis review.  Holder laid out the legal rationale for this in detail in his letter to Boehner informing him of the shift in position.  Holder drew on Supreme Court precedents like Lawrence v. Texas and Romer v. Evans in concluding that laws that discriminate against gays are not subject to simple rational basis review.  He concluded DOMA can't survive heightened equal protection scrutiny.

    In other words, the administration isn't just making an arbitrary determination that DOMA is unconstitutional.  It's making an educated legal judgment that the statute does not have sufficient justification to survive the level of constitutional scrutiny that Supreme Court case law indicates would be applied to it.

    Challenges to the PPACA are generally based on Congress lacking the power to pass it under the commerce clause of the Constitution.  But there's virtually nothing in modern commerce clause jurisprudence that would support that view, and I say this as a lawyer, FWIW.  So a refusal to defend the PPACA would not have the same basis as a refusal to defend DOMA.

    Of course, as others have pointed out, the Republicans will probably refuse anyway.  They just won't care whether they have a legal rationale or not.

    But realistically, they'll refuse to defend it if they want, regardless of a legal rationale. They don't need Democrats to refuse to defend DOMA in order for them to choose that.

    "If moral disapprobation of homosexual conduct is “no legitimate state interest”[...]what justification could there possibly be for denying the benefits of marriage to homosexual couples[...]?" - Justice Antonin Scalia

    by indiemcemopants on Mon Feb 28, 2011 at 09:10:06 AM PST

    [ Parent ]

    •  This was my main concern as well (0+ / 0-)

      While I am happy at the result, I'm still upset at the thought of a GOP Pres overturning the HCR law, legal rationale or not.

      Though, I think we'll know about the constitutionality sometime next year or in 2013. I think it'll get to the Supremes before Obama's first term is over.

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