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Last week Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeals threw down a major challenge to the Obama administration over equal rights for same-sex couples, fast on the heels of another federal judge doing the same thing.  Kozinski ordered the White House Office of Personnel Management to stop interfering with a Ninth Circuit employee's efforts to secure health insurance coverage for her wife.  His order comes after a similar move by Ninth Circuit Judge Stephen Reinhardt.  Kozinski's challenge in particular is seen by many as putting the Obama administration in a tough spot as it continues to uphold the Defense of Marriage Act (DOMA) while claiming to support GLBT equality, with one legal observer telling Time magazine that Kozinski's order is a "bombshell" for Obama.

Judge Kozinki's order involves Karen Golinski, a lawyer employed by the Ninth Circuit, and the woman she married under California law last year.   Ten months ago, Judge Kozinski, acting in his capacity as administrator in an employee dispute resolution, determined that the federal Administrative Office of the U.S. Courts (AO) had erred in rejecting Golinski's inclusion of her wife on her health insurance election form. Kozinski based his decision not on a challenge of DOMA, but rather by arguing that the Federal Health Benefits Act says that health coverage must be provided for an employee's family, including a spouse.

While the (Obama) administration interpreted that as meaning the coverage could only be provided for couples whose marriages are recognized under federal law, Kozinski reasoned that the law should be seen as setting a minimum standard for coverage, and that policies could include grandparents living at home, children until they are 25 or, as in Golinski's case, a woman with whom she is raising a child and is married to under state law.

"When a statute admits two constructions, one of which requires a decision on a hard question of constitutional law, it has long been our practice to prefer the alternative," Kozinski wrote in the January order. "The discussion above illustrates the constitutional thicket into which the discriminatory construction drags us. I therefore construe the Federal Employee Health Benefits Act to permit the coverage of same-sex spouses."

As Time magazine reports, Kozinski's order was not published and garnered little or no notice at the time. The AO moved to comply with the judge's ruling, submitting Golinski's insurance form to Blue Cross Blue Shield.  Time notes that the case "would have probably gone away" — had the Obama administration not stepped in to fight Kozinksi's order.  The White House, through the Office of Personnel Management (headed, ironically, by openly gay appointee John Berry) instructed Blue Cross to not process Golinski's insurance form to provide coverage for her wife.

Last week Judge Kozinski ordered the Office of Personnel Management to "cease at once its interference with the jurisdiction of this tribunal," and gave the administration 30 days to permit Golinski to include her wife on her family health insurance plan. Kozinski argued that the courts should have final jurisdiction over decisions involving its own employees:

"Some branch must have the final say on a law's meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise."

University of California law professor Rory Little, a former Justice Department prosecutor and chief of appeals, called the order a "bombshell" for the White House:

"This is like exposing the tip of a huge iceberg that nobody knew even existed," he told TIME. "It's a fascinating question: Do the courts even have the power to do this? Where does it leave things procedurally? Where can the Administration appeal? I think there are five or six lawyers in the [Solicitor General's] office scurrying around right now trying to figure out what to do with this."

Speaking to a reporter, Little described Kozinski's order as "throwing a dead fish into the lap of the Obama administration."  As Ann Rostow at the San Francisco Bay Times notes:

The administration is now faced with having to appeal the decision to the Judicial Council of the Ninth Circuit, or alternatively, roll over on its belly and make a critical exception to the Defense of Marriage Act.

Kozinski's order follows an order last week by his fellow judge on the appeals court, Judge Stephen Reinhardt, who also did an end run around DOMA.  Reinhardt ruled that Brad Levenson, a public defender working for the federal courts, was entitled to back pay to cover the costs of buying separate insurance policies for Tony Sears, whom he married under California law before Prop 8 passed.

Reinhardt had previously ruled that the denial of benefits for Sears was discrimination on the basis of sexual orientation, a violation of state law and an unconstitutional denial of due process (unlike Kozinski, Reinhardt challenged the constitutionality of DOMA).  He ordered the AO to process Levenson's application for spousal benefits, but once again Obama's Office of Personnel Management stepped in to derail the enrollment, again citing DOMA. So Reinhardt responded with his order for financial compensation for Levenson.

The Obama administration's latest action, in the Golinski case, to fight against equal rights for same-sex couples has further fueled the growing outrage against the administration among many advocates for GLBT rights.  John Aravosis at Americablog calls the move "something George Bush's administration would do."  And Michelangelo Signorile writes:

And of course, another bombshell here is that the Office of Personnel Management was ordered by the White House to refuse to give a lesbian federal employees (sic) her court-ordered rights. John Berry, as head of that office, was thus apparently forced as an openly gay man to deny another gay person, and the LGBT movement itself, of rights, even in the face (of) a court order. Is this how openly gay appointees must operate within the Obama administration -- not as advocates on behalf of civil rights but rather as lackeys charged with blocking equal rights for their own kind? That, if true, is enormously troubling.

Ann Rostow perhaps sums it up best, noting that the recent rulings by Kozinski and Reinhardt are likely signs of more to come in terms of presenting serious legal challenges to DOMA, and in terms of putting the Obama administration in an increasingly difficult situation - politically and legally:

So, you may ask, why is all this so significant? Because a federal appellate court judge is just one step lower than a justice of the U.S. Supreme Court. And here we have two of them ordering the federal government to take its Defense of Marriage Act and stuff it where the sun don’t shine.

If Levenson’s remedy is picked up by other married staff of the federal judiciary, we’ll see a raft of cash settlements. And keep in mind that the cash reflects the cost to Levenson of out of pocket insurance, which is presumably much higher than the cost of simply adding his husband to the federal pool.

If Kozinski’s argument is upheld or unchallenged, we’ll watch the U.S. government add Karen Golinski’s wife to her benefit plan, creating a deep fissure in the Defense of Marriage Act.

Either way, the developments in the Ninth Circuit are the most concrete attacks yet on the federal bulwark that isolates our legal marriages from everyone else’s; the Defense of Marriage Act.

My two cents: When federal judges are ordering you to stop interfering with their efforts to provide full equality to their GLBT employees, you start to appear being a fierce advocate not for GLBT equality but for anti-GLBT laws.  I understand that the Obama administration has to uphold existing laws, but I don't think it needs to defend DOMA with so much zeal and gusto - to the point where federal judges are telling you to back off.

Originally posted to davidkc on Fri Nov 27, 2009 at 12:00 PM PST.

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  •  Tip Jar (293+ / 0-)
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      •  That's an intresting federalist argument (7+ / 0-)

        And as bad as the DOMA is, I'm not sure it's true...but hopefully the SCOTUS will finally put it to rest.

        In terms of timing, I'm not sure this Court is ripe for a testing of this legal doctrine just yet...It probably needs one more Dem appointee.  How would Kennedy rule on this issue, for example?

        DOMA didn't really, as I understand it, intervene the federal govt into what is essentially a State's Rights merely exonerated individual States from having to recognize marriages performed in other States.  In that respect, it seems plausible that the federal legislature was acting within their authority to clarify interstate civil/legal/commerce issues...but I'd be the first to say I'd like to see it tested in the SCOTUS.  

        Perhaps not this one...but some future iteration of it.

        I know that doesn't wash with the "I want my same sex marriage now" crowd, but you can't throw a Hail Mary every down...sometimes you have to just move the chains down the field another ten yards to keep the drive going.

        Say what you will about the Ten Commandments, you must always come back to the pleasant fact that there are only ten of them. H. L. Mencken

        by Keith930 on Fri Nov 27, 2009 at 02:54:07 PM PST

        [ Parent ]

          Recommended by:
          snakelass, caul, ColoTim, Newzie, pkohan, MichaelNY

          States minted their own currency until the Fed was established. Discriminatory laws that provide rights to people in one state MUST apply to others.

          Corporate law is an object lesson for how well this DOMA shit has worked out.

          Feed America and Support HR 676 Healthcare For All Now!

          by ezdidit on Fri Nov 27, 2009 at 03:05:49 PM PST

          [ Parent ]

        •  Equal Protection Clause. DOMA forbids the Federal (30+ / 0-)

          Government from recognizing any same sex relationships even when legal in a state like Massachusetts. Massachusetts is actually suing the federal government right now over that.

          And even with the individual states not having to recognize legal marriages performed in other states, you run afoul of Full Faith and Credit.

          DOMA is just bad law, plain and simple.

          President Barack Obama - #44 - "FINALLY Getting Some Concrete LGBT Action To Go Along With The Flowery Speeches"-In-Chief

          by Yalin on Fri Nov 27, 2009 at 03:06:19 PM PST

          [ Parent ]

        •  this Court is ripe (1+ / 0-)
          Recommended by:

          agreed. miasma

          Feed America and Support HR 676 Healthcare For All Now!

          by ezdidit on Fri Nov 27, 2009 at 08:14:13 PM PST

          [ Parent ]

        •  Kennedy would find it un-Constitutional. (0+ / 0-)

          DOMA violates the equal protection clause.  So, for that matter, does Medicare.  
          There are two routes to correcting a Constitutional error.  The Legislative body can revise or repeal the law or the Supreme Court can strike it down.  As long as the law is on the books, the executive has no discretion about complying.

          We have a long history of depriving individuals of rights under color of law.  Slavery is one example.  Public education segregated on the basis of skin color is another--as was segregated seating on public transport facilities.  The defining criterion is "public."  Private entities, such as establishments of religion, may discriminate.  Even quasi-public entities, such as homeowner associations may self-segregate, as long as nobody objects.  Where age restrictions are challenged in court, they are usually negated.

          How do you tell a predator from a protector? The predator will eat you sooner rather than later.

          by hannah on Sat Nov 28, 2009 at 12:09:00 AM PST

          [ Parent ]

          •  How does DOMA violate equal protection? (0+ / 0-)

            I believe this has already been decided by fairly high federal courts.

            But for equal protection to apply, gays would have to be seen as a protected "class", if I understand the laws correctly.  So far, the courts have been unwilling to give gays the same class status as they have African Americans and women in the past.

            "Those are my principles, and if you don't like them... well, I have others." - G. Marx

            by Skeptical Bastard on Sat Nov 28, 2009 at 06:26:28 AM PST

            [ Parent ]

            •  They are unwilling to do so because many (1+ / 0-)
              Recommended by:

              of these people are homophobes. Sadly, enough of them to continue to obstruct basic justice for LGBT people. Women were once viewed as incapable of being intelligent enough to vote. African Americans were once told by our law they were not in fact fully human. Despite this being the 'law of the land' it didn't make it any less hateful and evil in the basic human rights that were being destroyed by such inhumane laws. The same should be said for the ongoing discrimination against LGBT people. Of course we aren't considered a protected class. The homophobes on the right and sadly sometimes on the center-left wouldn't want they because then they'd actually have to start giving us our civil rights.

              Sorry for the rant.

              "The greatest thing you'll ever do is learn to love and be loved in return"

              by Liberalindependent28 on Sat Nov 28, 2009 at 06:32:20 AM PST

              [ Parent ]

            •  "pretection" is a bit of a misnomer. (1+ / 0-)
              Recommended by:

              The federal government is charged with treating all persons as equals and, whether services or punishments are being delivered, to "protect" individuals from unequal treatment.  It's been a pretty consistent pattern that the obligations of the agents of government to honor and respect individual rights are discussed in terms of "protection," because that's the ultimate aim and agents of government prefer to see themselves as providers, rather than as public servants whose behavior is strictly limited by the Constitution.  Indeed, conservatives go so far as to argue that what's limited to the agents of government is the obligation to carry out just two responsibilities (to punish law breakers and foreign enemies), while the powers to direct individual behavior are open-ended and stewardship of our public assets doesn't even exist.

              How do you tell a predator from a protector? The predator will eat you sooner rather than later.

              by hannah on Sat Nov 28, 2009 at 07:13:19 AM PST

              [ Parent ]

      •  Not yet. (0+ / 0-)

        But  perhaps this will push it to the SCOTUS where that determination can be made.

        Ask me about my daughter's future - Ko

        by koNko on Sat Nov 28, 2009 at 05:23:27 AM PST

        [ Parent ]

    •  And some people here at Daily Kos have the (35+ / 0-)

      unmitigated gall to wonder why President Obama has been so reviled lately by the LGBT community. Even in "easy" situations like this one, i.e., letting a member of his own administration have health benefits, the Obama Administration fights.

      Jeez. Fierce advocate my ass.....

      The only way we're going to get this guy to do anything positive on gay rights is to force him to. He's no fierce advocate. Not by any stretch of the imagination.

      And hopefully more in the progressive community will realize what we have to fight against just to get Obama to adhere to even his most basic promises, let alone repeals of DADT, DOMA, etc.

      President Barack Obama - #44 - "FINALLY Getting Some Concrete LGBT Action To Go Along With The Flowery Speeches"-In-Chief

      by Yalin on Fri Nov 27, 2009 at 02:55:20 PM PST

      [ Parent ]

      •  Oh, and it's shit like this that I signed the (17+ / 0-)

        petition started by AmericaBlog, Daily Kos, Pam's House Blend, et al to withhold money from the DNC, OFA, DSCC, DCCC.

        I've raised and given thousands of dollars to democrats in the past two cycles. My wallet is closed and my dedication and work withheld as long as bullshit like this continues.

        President Barack Obama - #44 - "FINALLY Getting Some Concrete LGBT Action To Go Along With The Flowery Speeches"-In-Chief

        by Yalin on Fri Nov 27, 2009 at 02:59:38 PM PST

        [ Parent ]

        •  I posted a few months ago about boycotting (6+ / 0-)
          Recommended by:
          caul, iyou, kurt, Clarknt67, Pender, Donkey Hotey

          the DSCC, and people really reviled me. My wallet is closed until the Dems act like "men" and stand for what they campaigned for. The Republicans never had a problem rolling over the majority of Americans with their ideology.

          "How I hate those who are dedicated to producing conformity." William S Burroughs

          by shmuelman on Fri Nov 27, 2009 at 08:59:53 PM PST

          [ Parent ]

        •  Don't close it to everyone (3+ / 0-)
          Recommended by:
          snakelass, iyou, MichaelNY

          Don't give to the PACs that will put the money where they want to, but don't abandon the pro-gay people who ARE righting for us. The Orange to Blue list for instance. Tammy Baldwin and Barney Frank, both openly gay, still deserve your support.  I know Baldwin has her own PAC that donates to other candidates, I imagine Frank does as well.  That would be a way to give to candidates who will stand up for gay rights.

          I don't plan to give to DSCC this year, that money may end up going to Specter or Reid, but I will give to individual candidates.

      •  no shit (9+ / 0-)

        See the stubborn denial of the fact that you can't call yourself a "fierce advocate" of anything when you never do anything to advance the issue.

      •  I am not as sanguine as you are (20+ / 0-)

        that the decision to argue the right of the WH Office of Personnel Management to set policy for its employees is, in fact, an intentional anti-lgbtqi decision, rather than an issue of jurisdiction or apparent jurisdiction, and part of a longer range tactical approach.  

        As a queer pinko who has had a career in senior HR administration, I've seen these kinds of things played out before, and while agree that the short-term impact is most definitely anti-queer, I am not sure that the leap to:

        The only way we're going to get this guy to do anything positive on gay rights is to force him to.

        ie 'intent' is necessarily a fair conclusion.  That the head of WHOPM is openly gay suggests to me that there is more here than meets the eye.  

        From my vantage point, I'd suggest that each time the WHOPM loses a ruling makes the case that the current laws are insupportable and cannot therefore be enforced by the WH.  It's not an uncommon tactic, to win by losing, and create a box (the third branch of government - courts - says to the executive branch, you cannot discriminate against lgbtqi, and the executive branch says to the legislative branch - "we had no choice, the laws you passed are unenforceable". This pits the judicial branch against the legislative branch, rather than the executive branch against judicial or legislative) from which there is only one exit.  

        If I had as many fights on my hands as does the Obama administration, I'd probably use this alternative approach on as many fights as I could.  

        As a longtime queer activist and a person of color, I'd also say that no minority group can ever take any promises on our rights for granted, especially in a system that regularly attempts to put our rights up to the voting approval of a majority.

        "Out of Many, One." This is the great promise of our nation -9.75 -6.87

        by Uncle Moji on Fri Nov 27, 2009 at 03:30:33 PM PST

        [ Parent ]

        •  I just don't believe in 10-dimensional political (14+ / 0-)


          President Barack Obama - #44 - "FINALLY Getting Some Concrete LGBT Action To Go Along With The Flowery Speeches"-In-Chief

          by Yalin on Fri Nov 27, 2009 at 03:56:50 PM PST

          [ Parent ]

          •  That would be 11-dimensional, as in string theory (4+ / 0-)
            Recommended by:
            caul, JVolvo, Donkey Hotey, MichaelNY

            or Star Trek . . .

            It is not power that corrupts, but fear. Be fearless & show humility. (h/t)Aung San Suu Kyi

            by sturunner on Fri Nov 27, 2009 at 04:24:09 PM PST

            [ Parent ]

          •  Stop with the multi-dimensional chess claims, (6+ / 0-)

            please.  They have been used exclusively to foment black/white finger-pointing here and are not at all helpful, IMHO.

            The post above was as straightforward as legal consideration and jurisdiction management can probably be, here.  Which is to say that it takes some thought and process, apparently.  This is not something that's already decided how to work through and has been moving very slowly down the field, as we all know.  Very slowly.

            We all want this to move faster, in a permanent fashion.

            "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

            by wader on Fri Nov 27, 2009 at 04:57:35 PM PST

            [ Parent ]

            •  1) I call bullshit on the black/white finger (19+ / 0-)

              pointing and multi-dimensional chess. Whatever.

              1. Funny how jurisdiction and claims that Obama has to follow this path and that path don't get consideration when his administration decides to defend executive powers for spying, for example.

              Funny how the law "has to be applied" when dealing with LGBT issues, but can be skirted by executive order when dealing with other issues like torture.

              Funny that.....

              President Barack Obama - #44 - "FINALLY Getting Some Concrete LGBT Action To Go Along With The Flowery Speeches"-In-Chief

              by Yalin on Fri Nov 27, 2009 at 05:07:43 PM PST

              [ Parent ]

              •  Of course you call bullshit (6+ / 0-)

                and throw out a false comparison against two issues which have absolutely nothing to do with one another from a legal process standpoint.

                The multi-dimensional chess canard is pure, unadulterated divisiveness: it's meant entirely to poo-poo any sort of rationalizing being done about something - anything - that the current Administration seems to be doing from a process standpoint, which goes against the grain of desired, straight-line changes in established law, procedure or policy.  It's meant to shut people up and tell them that their arguments are full of imagination at best, Obama-worshipping at worst.

                I find it unfair to use at this site, regardless of the subject in which it's wielded.  The only fragments I've seen for Obama-can-do-no-wrong posters here appear to reveal that very, very few extremists of that bent actually post here on a semi-regular basis.

                But, because we are all impatient for decades (and, in the case of LGBT righs, centuries) of unfair law and culture to change as soon as possible, this new Administration - which is not far-progressive, but methodical, by obvious demonstration (as Obama had repeatedly shown himself to be before the election) - is being held to the highest possible level of needing to relieve the pain.  Now.  Immediately.  All of it.  Everywhere.

                I want that to happen, too.  I just wish it could be faster, but I - and others - can understand that anything embedded in law that is not easy to permanently overturn through Congress will likely go through a process in order to do so.  A proper, legal one with the courts.

                Obama has a history of being cruel to be kind, I feel.  He experiments with things until they break, then even detractors can't defend what was proven to be broken.  Meanwhile, real people suffer while they wait for fair law and treatment to occur.  This, to me, is another example of that history.

                "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

                by wader on Fri Nov 27, 2009 at 05:23:07 PM PST

                [ Parent ]

                •  slight problem with your storyline, wader (11+ / 0-)

                  The 11th Dimensional Chess line doesn't come from Obama's critics, it comes from the fanboys.  Everything he does is rationalized as some super secret strategy to "rope a dope" the Republicans into embarrassing themselves so Obama can move on without them....except we never reach that Step 2.  See: stimulus, health care.  Remember this picture?  Funny how it's use has kinda died out...

                  I Got This Pictures, Images and Photos

                  I just wish it could be faster, but I - and others - can understand that anything embedded in law that is not easy to permanently overturn through Congress will likely go through a process in order to do so.

                  The "process" excuse only works if Obama is trying to move said process.  Now the excuse is that it'll be taken up in next year's appropriations bill - fat chance of that happening in an election year.

                  And that's ignoring the elephant in the room - the fact that Obama could have halted DADT when he took office in January.  If he had done that and tried (and failed) to pressure Congress to take up the issue, this excuse might hold some water.

                  •  I'd love to offer a mirror (13+ / 0-)

                    but the vitriol and anger is perhaps too much - it may be an unwelcome reflection.

                    Here's the best I can offer:

                    Everything he does is rationalized as some super secret strategy to "rope a dope" the Republicans into embarrassing themselves so Obama can move on without them.

                    These characterizations have become de rigueur at this site, yet are extreme and ridiculous, I feel: you're taking some minor elements of early enthusiasm and initial wondering about his this new Administration works from the early months - because, this was all new to us - then transposing that in a manner that can be applied to anyone who isn't shouting down Obama on a particular position you might find untenable.

                    When diaries obviously attempt to offer a different view of possibilities from this Administration and desire to show that some things have been improving, the strikes me as minor attempts to show there's a balance of potential support for some of this Administration's possibilities . . . against the seeming majority of "where's my change, you liar?" crowds which often get the eyeballs and recommends.  It's easy to criticize and that's just natural in politics, it's not easy to solve according to a best path that's also straight, I feel.  Especially with this kind of cooperation-seeking, gradual process-pushing President and our same, tired Congress with a (D) in the majority column.

                    So, for me and others I read here, there's tons of grey that seem missed in the often-seen zeal to demonize this President for not making specific issues of general interest (e.g., getting rid of DADT and all its relations) super-simple and accomplished according to our distilled-down views of how it should happen in a relatively ideal world.  A difference of perspective is one thing, but this branding is fully unfair.

                    One of Obama's initial directions to Gates was "figure out how to get rid of DADT", if you recall.  Twice, I from what I read.  Each time, Gates came back from his task of figuring out how to change current processes, etc. with an excuse that it was too much for him to handle on his own at this time, essentially.  I have no idea if that gave Obama pause on just signing an Executive Order due to concern that it might screw up Congressional movement to eliminate DADT fully (i.e., give Republicans an easy scapegoat target while we push for more permanent, legislative change) or what - but, I can see how that might be a concern.  It might be a huge lightning rod and I've never thought an Executive Order would be in our best interests here unless the possibility to get a repeal into law was dismal.  Since then, Rep. Barney Frank constructively offered that it will be placed into the appropriations bill (as you noted) - where he felt it would have the best chance of being pushed through.  Sounds pretty logical to me.  And, if it doesn't go through for all the wrong reasons?  Obama should then up the volume on that issue by signing an Executive Order, I feel - at that point, there's nothing to lose.

                    Obama has stated that he wants this done fully, not on a per-President basis.  So, in his mind: no, it shouldn't be done by his quick signature, I figure.  Maybe I'm wrong and he just doesn't really care or something.

                    Still, this is all pretty rational stuff to consider - Bush could be read like a book, but seeing how things operate here has just taken a bit longer.

                    I have come to feel that Obama is more a political chess player than a tic-tac-toe player, and that he feints more than he hits (frustratingly to me), but he's also rather transparent about the overall processes he prefers.  He seems to like testing things - even obviously bad things - before trying something new, at times.  Like, overhauling the direction of NCLB instead of dropping it outright.

                    And, therein lies the real and perceived problems, as I stated:

                    Obama has a history of being cruel to be kind, I feel.  He experiments with things until they break, then even detractors can't defend what was proven to be broken.  Meanwhile, real people suffer while they wait for fair law and treatment to occur.  This, to me, is another example of that history.

                    And sometimes, I wish he would knock out the noise sooner and just hit on the issue incessantly.  More than just once in awhile, make a firm stand on core issues for the public to rally around, at least.  He's more subtle and open to new ideas and events, great.  That's only a good style for some aspects of leadership, in my experience.

                    That doesn't change our desires or need, I realize.  Nor should it alter our pushes for prioritization of what seems important to work on sooner and/or faster.  Being loud is good.

                    Yeah, we all want change now.  As unfair as it is, maybe that's not always that best way in the current DC climate.  It's a rather foul place.

                    But, claims of Obamabot-like mindsets here aren't going to help anyone discuss these matters.

                    I really don't have a problem with the above graphic: it's meant to show that an adult is in the White House compared to BushCo, more a statement of relief than anything else.  Possibly a symbol of omeone who doesn't show much political ideology but who is a politician and an imperfect human - who tries to take responsibilities on - however poorly or weakly, at times.

                    I'm an original Obama supporter and have stated here many times that I've never felt he would be the big game-changer, but instead a necessary, preparatory step in our societal, legal and political areas to enable someone after him to make the major plays finally happen.  Like, truly downsizing the military industrial complex and moving the private health insurance companies into a minority position for managing health coverage.  Similarly, I sadly don't expect DOMA to go away in this next few years, but would be very happy for that to happen.

                    In the current climate, I couldn't see someone such as Howard Dean get into the Oval Office.  But, I think Dean could win in 3-7 years if Obama is even half-way successful.

                    "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

                    by wader on Fri Nov 27, 2009 at 08:30:13 PM PST

                    [ Parent ]

                    •  You should offer this as a diary (4+ / 0-)
                      Recommended by:
                      wader, liberte, Uncle Moji, MichaelNY

                      Though you might not get traction with it, it is a strongly convincing argument, especially after eight years of pushing ideology by brute force, whether strictly legal or not.
                      I also don't know if we have the "boiling frog" syndrome here, as you may have stated. At some point, the military-industrial complex will need to be scaled down, but maybe there needs to be a slow ratcheting up before these major issues, that are backed by both D's and R's, can be addressed

                      "How I hate those who are dedicated to producing conformity." William S Burroughs

                      by shmuelman on Fri Nov 27, 2009 at 09:14:19 PM PST

                      [ Parent ]

                •  In other words, you think we should (6+ / 0-)

                  give him another Friedman Unit.

                  •  That's funny. (2+ / 0-)
                    Recommended by:
                    ohiolibrarian, Uncle Moji

                    Personally, I think America's problems are hugely complex and resistant to remedy.  We've got a big chunk of our political culture that's constitutionally/Constitutionally constipated conservative and two dominant strains of krazy -- the Bachman-Palin-Beck-Limbaugh wingnuts and the Dobbs-Broder Independents-Fetishising-Balanced-Budgets-and-Bipartisanship-To-The-Point-that-the-GOP-Wins club for (No)Growth.

                    So fixing that requires staying in power for an extended period of time and coexistence with/cooptation of krazy people without losing generalized, sustainable forward motion.

                    A Friedman Unit is itself multi-dimensional, measuring time on the y axis and lost opportunity to do something else on the x axis.  It's the square of conservatism.  

                    I'm a fan of the middle ground between ___ NOW! and 12 Dimensional Chess -- good cop/bad cop, for example.  Or, in this case, intense pressure and support (even though it requires seeming inconsistency).  It's good to be both too demanding and too reasonable, simultaneously -- if you can use that to get better results.  

                    Better results, in the American context, is a long-term mega-project.


                    "Of course she's electable . . . Palin is an idiot, representing millions of idiots--and their masters."

                    by chicago jeff on Sat Nov 28, 2009 at 05:55:20 AM PST

                    [ Parent ]

                •  Indeed, it is time to call a spade a spade (1+ / 0-)
                  Recommended by:

                  and look at this administration for what it truly is on LGBT rights.


                  Nothing the Obama administration has done this year has been LGBT positive other than signing two bills the Congress sent to it. Oh, and finally lifting the HIV Travel Ban. Though that could have, and should have, been done months ago.

                  DADT stop loss, even though President Obama has the authority to do so, while simultaneously working with Congress for a repeal? Nope.

                  How about not shutting down attempts by Congress to de-fund DADT? See Rep. Alcee Hastings and the ordeal he went through on the behalf of LGBT service men and women.

                  Less aggressive DOMA defense, or even filing a brief in support of people filing to overturn the law like other DOJs have done in the past? Nope.

                  Health Insurance for their own employees? Apparently nope.

                  This isn't a matter of getting everything that you want RIGHT HERE, RIGHT NOW. It's about moving in a positive direction at the least. Obama has not done this unless forced to do so.

                  Quite frankly, the vast majority of his "fierce advocacy" has been quaint speeches.

                  So yes, I don't believe in multi-dimensional chess. I believe in what you do defining your true beliefs on matters.

                  And in that vein, President Obama is an abject failure on LGBT issues.

                  President Barack Obama - #44 - "FINALLY Getting Some Concrete LGBT Action To Go Along With The Flowery Speeches"-In-Chief

                  by Yalin on Sat Nov 28, 2009 at 07:48:31 AM PST

                  [ Parent ]

          •  Perhaps this is the difference between (0+ / 0-)

            those of us activists who have had the responsibility to enact change on an institutional level by navigating successfully through all the institutional and emotional barriers and with some of those activists who engage in public pressure politics that depend on actors on the inside like me.  

            Frankly, I believe both approaches are necessary to make change.  I don't deride your approach as one trick pony, I'd appreciate it if you didn't deride mine as meaningless sci-fi games.  Both approaches are critical to success, in my view, because in my lifetime as a queer activist on both the outside and inside, I know it takes all of us.  

            Best regards.

            "Out of Many, One." This is the great promise of our nation -9.75 -6.87

            by Uncle Moji on Sat Nov 28, 2009 at 02:50:46 PM PST

            [ Parent ]

        •  Many a time (6+ / 0-)

          I've had a political body tell me to appeal so the judge can rule, giving the political body political cover for doing the right thing.  Cowardly but effective.

        •  One thing to remember............... (2+ / 0-)
          Recommended by:
          Tonedevil, MichaelNY

          ........... Obama is not an advocate for gay/lesbien marriage. He does advocate equal rights tho.

          I think this defence of DOMA is in effect going after gay/lesbian marriage, to get it off the books. Not a chess game to argue for equal rights.

          Corporate money for campaigns does not equal free speach, it is legalized bribery.

          by socks on Fri Nov 27, 2009 at 07:39:32 PM PST

          [ Parent ]

        •  I think this is very well-thought-out. (3+ / 0-)
          Recommended by:
          Uncle Moji, Donkey Hotey, MichaelNY

          First of all, we're trying to infer the administration's strategy--basically we're reading tea leaves here.

          If the administration's action is as heinous as some would have us believe, why would a gay man remain head of OPM?

          Right now I'm willing to give the President some latitude until I understand what he's trying to do. I already know we have has vote on any LGBT bill that congress can pass--so that's where the action is. I'm more concerned about congress being a "fierce advocate" for LGBT rights than Obama.

          Keep the pressure on congress! DADT and ENDA are in the hopper. I'm not sure about the status of UAFA.

          "I like your Christ, I do not like your Christians. Your Christians are so unlike your Christ." --Mohandas Gandhi

          by homogenius on Fri Nov 27, 2009 at 07:51:17 PM PST

          [ Parent ]

          •  And I can't understand the Log Cabin Republicans (6+ / 0-)

            There are many people who will vote against their interests in some areas in order to get what they want with others - they're not single issue voters.  Still, Log Cabin Republicans are one group I've never been able to figure out.

            I'd rather have the courts over-rule DOMA so that Congress has to go back and pass something different, if they really want to open that up all over again.  Just having the President sign an order means the next President can reverse it all over again.  The best option is the Supreme Court saying that all people have an equal right to marry under the Constitution since that's the pursuit of happiness, but I'm not going to hold my breath yet.

        •  Extremely reasonable and has opened my mind... (2+ / 0-)
          Recommended by:
          samddobermann, Uncle Moji

          to quote Dennis Hopper.

          "How I hate those who are dedicated to producing conformity." William S Burroughs

          by shmuelman on Fri Nov 27, 2009 at 09:02:02 PM PST

          [ Parent ]

    •  He's NOT a fierce advocate of gay rights, (21+ / 0-)

      as he promised he would be.  But it would be nice if he'd at least not fight the cover that other branches afford him.

      1. There's no reason to enforce DADT at a time of stop loss.
      1. There's no reason to fight another branch of government's recognition of the equality of gay marriages, especially when they'd be in contempt to do so.

      There's a word for people who stand up and ask for the gay community to work their asses off for a candidate who promises to be a fierce advocate on their behalf then screws them over at every conceivable turn.  It's OBAMA.

      In every race, in every district, in every state, the leftmost electable person! Primary the Blue Dogs! BE LEFT OR GET LEFT.

      by ultrageek on Fri Nov 27, 2009 at 03:48:32 PM PST

      [ Parent ]

      •  Well, not at *every* turn (5+ / 0-)
        Recommended by:
        Renee, mbc, Predictor, Clarknt67, Pender

        Remember, there was a lesbian family at the Easter Egg Roll.  That's real progress, isn't it?  How many queer people were ever at a White House Easter Egg Roll?  After all, fierce advocacy has to start somewhere, and the Easter Bunny was there to lend a furry hand.

        Stay positive, ultrageek!

      •  I've never viewed Obama as a "fierce advocate" (6+ / 0-)

        regardless of what he might have said. I'd have been stupid if I did. He's a good politician and (I think) a decent guy. But he's still a politician. And he's very, very heterosexual. Frankly our rights are not his issue; they don't affect him personally and we are just one more constituency (albeit one which he ignores at his peril as we tend to be well-informed and to vote very much as a bloc). He may sympathize but he is not in our shoes.

        When it comes to my rights, I've ALWAYS found it necessary to vote based on who I think will do the least amount of damage to them. On that basis I don't think my vote for Obama was a mistake. But as for him being our champion, I really haven't expected him to be. It's not like I'm giving him a pass; he can and should be pressured from every possible direction. But bashing him is pretty much of a waste of time.

        •  At every possible opportunity... (0+ / 0-)

          ...he declares himself a fierce advocate.  I don't believe him.  I haven't since Donnie McClurkin, and that's why I supported Hillary.  When Hillary conceded, there was a conference call from the Obama campaign to Hillary's gay leaders, and, how I wound up in that list, I never will know, but they assured us again and again and again that Obama was going to be a "fierce advocate", and he's repeated those words over and over.  

          It's one thing for politicians to lie to a swath of the population on television, it's another thing when they, and their spokespeople, do it to you personally.

          In every race, in every district, in every state, the leftmost electable person! Primary the Blue Dogs! BE LEFT OR GET LEFT.

          by ultrageek on Tue Dec 01, 2009 at 10:13:10 AM PST

          [ Parent ]

    •  Outstanding. (5+ / 0-)
      Recommended by:
      caul, Uberbah, Predictor, elwior, Clarknt67

      Stick it to the Administration, and twist it 'til their eyes water.

      That's what a "fierce advocate" looks like, Mr President. Take notes.

      The real enemy of the good is not the perfect, but the mediocre.

      by Orange County Liberal on Fri Nov 27, 2009 at 05:20:28 PM PST

      [ Parent ]

    •  The administration has decided that 2010 will be (0+ / 0-)

      decided by who keeps the independents.

      Therefore, Obama is running to the right.  

      Gays and the various elements of the left wing of the Democratic Party are going to get hung out to dry based on the assumption that in the end they will hold their noses and vote for Democrats rather than stay home or go for third parties.

      The only way to change that calculation is to make the Democrats lose more votes on the left than they gain on the right.  The price of that may well be lost elections and a return to power by the Republican Party.

      Are you willing to pay that price to enforce political orthodoxy?  Think carefully...

    •  Have you maybe thought that perhaps (0+ / 0-)

      one way of being a fierce advocate is by forcing the issue this way?

      No.. really, if you think a law is absurd one way of getting it knocked down is through the courts and it works a lot faster and creates a lot less wingnut driven chaos then through the legislative.... and under the guise of fulfilling your constitutionally mandated duty to enforce the law.

      Pick a case and a venue that stacks the deck toward the purpose of getting the law overturned and you are there.

      •  one problem with that theory (1+ / 0-)
        Recommended by:

        Judge Kozinski isn't challenging DOMA or addressing marriage at all.  He's challenge the right of the judicial branch, not the executive branch, to be the final arbiter of the benefits it offers its employees.  And he's addressing how to interpret the Federal Health Benefits Act. So if Obama is trying to challenge DOMA, this seems like an odd case to use.

        Meanwhile, GLBT Americans are repeatedly being denied health coverage by the Obama administration.  Not quite the precendent I thought he'd be setting.

        •  you might want to reread what you posted (0+ / 0-)

          If Obama wants to chip away at DOMA while still fulfilling his constitutional obligation to enforce the existing law(something we bash the living shit out of the other guys when they DON'T do it on hate crimes, environmental.. a pretty long list of 'em actually); this is just the kind of method to do that.

          As you said.. a lot of GLBT couples are getting screwed on benefits and this WILL fix that and also in the process reduce the effectiveness of DOMA.. the net effect of having an existing but ineffective law on the books is it is easier to kill that law, or it forces the other guys to make a run at a constitutional amendment which will be costly in financial and political capital and clearly mark them as sheet wearing bigots.

          The other part of doing it the way that it is being done is that it prohibits the next President from interpreting the benefits act in a way that is not friendly to GLBT couples.

          Now.. would I rather make a big old frontal assault on DOMA?  Sure, but that is just the kind of hyper aggressive asshole that I am.  But that doesn't mean that I can't appreciate the tactical position at present and see the utility of a more oblique attack...

      •  So his admin handles this exactly like Bush would (2+ / 0-)
        Recommended by:
        Predictor, Liberalindependent28

        But we can intrepret the actions in a way that will preserve our hero worship. Isn't that convenient? Would you afford the same benefit of the doubt to Bush's OPM?

        The Obama administration has fired 525 soldiers for being gay as of 11/25/09.

        by Scott Wooledge on Sat Nov 28, 2009 at 07:28:45 AM PST

        [ Parent ]

        •  No I wouldn't since the two have far different (0+ / 0-)

          stated positions.

          What this all boils down to is trust.. you either trust the people that have been fighting along side you loe these many decades or you don't.

          And from your tone you don't.  And because of it you will likely endorse a course of action that will ensure that they can't trust you in the future.

  •  Part of me would like to believe that this was (19+ / 0-)


    But, probably not. In any case, it is going to end up forcing the White House to practically gut DOMA, considering that the restrictions aren't holding up in court.

    -3.62, -6.21 Steadfastly refusing to comment on Sarah Palin since 11/16/09.

    by Zikar on Fri Nov 27, 2009 at 12:07:58 PM PST

    •  Planned by whom? (96+ / 0-)

      The Obama administration has repeatedly chosen to uphold Bush justice department initiatives despite plain illegality and injustice.  The pattern is clear, and the 11-dimensional chess arguments are reaching the point of self-parody.

      To announce that we are to stand by the president right or wrong is not only unpatriotic and servile, but is morally treasonable to the American public. -TR

      by Dallasdoc on Fri Nov 27, 2009 at 12:14:35 PM PST

      [ Parent ]

      •  By whom, I don't know... (5+ / 0-)

        I just have a hard time believing that no one in the WH saw these issues coming when they extended partner benefits to federal employees. I mean, that's basic, first year law school stuff. Someone should have seen the Constitutional issues a mile off.

        -3.62, -6.21 Steadfastly refusing to comment on Sarah Palin since 11/16/09.

        by Zikar on Fri Nov 27, 2009 at 12:22:17 PM PST

        [ Parent ]

      •  Isn't it the job of the Justice Department.. (7+ / 0-)

        to defend the United States in Court? Isn't it the Supreme Court, or the Legislature that deals with the Constitutionality or justice of laws?

        •  Doesn't prohibit discretion (76+ / 0-)

          Nothing says the DOJ has to use every means at its disposal to uphold an unjust law, or that it cannot frame its case in such a way to invite a court to rule against it.  An AG can also decline to contest a case at his or her discretion.

          If Holder's DOJ is going to the mat for DOMA that's a choice, and nobody should pretend otherwise.

          To announce that we are to stand by the president right or wrong is not only unpatriotic and servile, but is morally treasonable to the American public. -TR

          by Dallasdoc on Fri Nov 27, 2009 at 12:43:57 PM PST

          [ Parent ]

          •  THANK YOU! (20+ / 0-)

            "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

            by indiemcemopants on Fri Nov 27, 2009 at 12:49:13 PM PST

            [ Parent ]

          •  So what would you have.. (2+ / 0-)
            Recommended by:
            wader, Luetta

            the Justice Department do, regarding it's defense of the United States Government? If they decline to contest a case...that is already in the legal process, what ramifications would that have as far as remedies..or what would the consequences be? And what would that do to alter the existing law? It wouldn't even kick the can down the street.

            •  I (29+ / 0-)

              I would have the Obama admin step in tell his Justice department to back off. It's the morally right thing to do, and what the asshole CAMPAIGNED ON.

              If he continues to through GLBT Americans under the bus like this, he going to reap the proverbial whirlwind. If you thing the gays are outraged now, you haven't seen anything compared to the shitstorm that is coming if Obama keeps this crap up!

              •  I don't think he CAMPAIGNED ON (2+ / 0-)
                Recommended by:
                wader, fromdabak

                not providing a legal defense for the United States Government. I am certain you will have your 'shitstorm' and Obama will 'keep this crap up'. You just keep watching the tv.

                •  it's the "fierce advocate", stupid (8+ / 0-)

                  Remember when he campaigned on THAT!  Is this another case of expecting Obama to live up to ones campaign promises makes you an "Obama basher" using alternate physics?

                  •  You are so sweet.. (1+ / 0-)
                    Recommended by:

                    I said nothing about "Obama Basher". And yes "Stupid".. I do recall his saying he had been a "fierce advocate" of civil rights. I believe he is also a fierce advocate for a new energy policy, education reform and healthcare reform..that other topic that spurns the daily diatribe diary, which say nothing. What does that have to do with our Legal System? Seeing as how you yourself are such fierce advocate, you must know far more than stupid me, the merits of the cases that have you so enraged. Perhaps you could explain the law in a thoughtful, intelligent manner?

                    •  you are so willfully obtuse (5+ / 0-)
                      Recommended by:
                      caul, Tonedevil, CWalter, Dagoril, BentLiberal

                      And yes "Stupid"

                      Yes, borrowed from Bill Clinton.

                      I do recall his saying he had been a "fierce advocate" of civil rights.

                      Then why are we even having this conversation?  So far his administration has done more to oppose the advancement of gay rights than support it.

                      Perhaps you could explain the law in a thoughtful, intelligent manner?

                      Perhaps you'd like to explain why Obama's DOJ is faithfully following the DOMA law, yet continues to ignore half the bill of rights and international treaties as if Bush had never left office?

                •  Nope (3+ / 0-)
                  Recommended by:
                  Dallasdoc, caul, Tonedevil

                  Nope, he campaigned on being a "fierce advocate" for gay rights. I don't know what fierce advocates are like where you live, but where I live, fierce advocates for gay rights do not SUPPORT denying gay spouses health care coverage, in DEFIANCE of a damn court order to provide coverage.

                  Watch tv yourself jerk.

              •  that's right (1+ / 0-)
                Recommended by:

                Sarah Palin will appreciate your support.

                Shitstorm?  Millions of hungry and homeless Americans without a job or healthcare are going to show you what a real shitstorm is.

                Not that Big O is doing much for them, either, and I am very unhappy with the way things are going also, but we have other priorities right now that seem a bit more pressing, in case you haven't noticed...

                don't always believe what you think...

                by claude on Fri Nov 27, 2009 at 06:26:48 PM PST

                [ Parent ]

                •  Sure sure (4+ / 0-)
                  Recommended by:
                  Dallasdoc, caul, socks, craigkg

                  Of course! Obama is so busy! Why he is so busy denying lesbians their insurance, he can't even call Harry Reid and tell him to be a fucking Democrat and demand a Public Option in the Health Care bill. How rude of me to want measly civil rights, when Obama is so busy pardoning a fucking turkey! I mean who cares if that turkey pardoning is keeping us from closing Gitmo, because it would take so much time away from our busy President!

                  Maybe if Obama spent less time shoveling money at Wall Street and not withrawing us from Iraq and Afghanistan, he would have time to worry about silly things like the Economy, jobs for non-millionaires, and civil rights for us fags.

                  Presidents don't get to hide behind "busy". If they are too busy, they hire more fucking staff.

              •  He campaigned on repealing it ... (1+ / 0-)
                Recommended by:

                ... and one can believe it's a lousy law yet a constitutional one.

                Show Dems in R-Leaning Districts Who Voted For Health Care, Against Stupak: We've Got Your Back

                by Adam B on Fri Nov 27, 2009 at 07:18:35 PM PST

                [ Parent ]

              •  Isn't that very dangerous? (0+ / 0-)

                I would have the Obama admin step in tell his Justice department to back off.

                Isn't the independence and non-politicization of the Justice Department of great importance? Wasn't the politicization of the Justice Department under GW a terrible thing?

            •  They can try to appeal on technical grounds (0+ / 0-)

              or they can simply decline to appeal. What's stopping them from declining to appeal?

          •  The oath of office requires the Exec to uphold (7+ / 0-)

            the Constitution and Laws of the United States, including DOMA unless and until either the Congress or the court kill it off. One of the unfortunate heritages of Bush is the need to return to a more nearly legal balance, by not as a matter of Presidential practice validating Bush habits of simply ignoring officially signing statements or by nonenforcement statutes he didn't like. Sensible people don't like presidents who do that, too much unitary executive, and it is a habit being rejected by the new administration. O has said what he thinks on DOMA but simply doing a swan dive on enforcement is validating Bush bad conduct, a hanged if you do one and shot if you do the other sort of proposition. Which might win us one thing, the ruling here, and lose us another, a validation by a second administration of Executive autonomy and autocracy ignoring the other branches of government and their acts at will.

            These two bombshells were bombshells last week when sharp eyed Kossacks posted both of them. My concern for my brothers and sisters now is to avoid the demoralization that will accrue to those hoping for swift clean strokes wiping away oppression, based on these two, because both seem to be administrative decisions inside the Judicial Branch, rather than Constitutional judicial Article III court type decisions that would go to the Supremes. The difference means that it may be that these will work inside the Ninth Circuiit, or the Judiciary as an administrative matter, if this is appealed to the Judicial Council and upheld, but probably cannot go to SCOTUS. I have not heard of appeals of Judicial Council of the US administrative decisions  not constituting Federal Rules,to SCOTUS and invite anyone who has to post it so we can both dance. And I do note that the route to either the JC to get wider application or to SCOTUS has to be preceded by either an appeal from the loser - guess who - to a higher court or panel, with the addendant squawks that he shouldn't appeal one the good guys and gals won, or by the winner, who it seems has very little loss to appeal from.  This is, I think, one of those bricks building the wall we all want, the longer road there. Closing in slowly but surely on the goal.

            •  Wouldn't have as much of a problem with that if (14+ / 0-)

              Obama's administration (and he, personally, by extension) weren't being such a hypocrite by going ahead and using Bush-like tactics on some things but not others.

              Back to the "have cake and eat it, too" situation. It don't work.

              Never has so much been taken from so many by so few for so long...

              by JWSwift on Fri Nov 27, 2009 at 01:29:40 PM PST

              [ Parent ]

              •  Defending the constitutionality of statutes (10+ / 0-)

                it disagrees with does not, to me, seem to be a Bushian position.  It seems rather the opposite of it, in fact.

                Revolutionary Road was an awful, awful film.

                by burrow owl on Fri Nov 27, 2009 at 01:32:24 PM PST

                [ Parent ]

                •  You pried the thought right outta my brain. (2+ / 0-)
                  Recommended by:
                  burrow owl, Matt Z
                •  They why doesn't he prosecute the war crimes.... (16+ / 0-)

                  ....of the last administration?

                  Obama is being just as selective as any other administration.

                  DOMA just happens to be one of the laws he's selecting to enforce.

                  Policies that were wrong under George W. Bush are no less wrong because Barack Obama is in the White House. - Bob Herbert

                  by GreenSooner on Fri Nov 27, 2009 at 02:16:45 PM PST

                  [ Parent ]

                  •  Because there is no proof of war crimes (4+ / 0-)
                    Recommended by:
                    notagain, wader, kafkananda, fromdabak

                    before I get shot down, please allow me to continue.  Bush and his crew have "legal" opinions stating what they did was "legal' under US laws.  Congress has accepted and continues to accept that as enough of a reason to allow it.  The sad truth is that there were Democrats who knew what was happening, maybe not all of it, but enough to know what was happening was flat out wrong and they allowed it to happen anyway.  

                    Attacking Bush on war crimes will undermine Obama's authority to fix problems because it will give the right something to hit him with that would ring true.  It is unpopular to target people for torture because Congress and the American people feel it was justified.  It will create a quagmire where no legislation will be able to be created and the changes we need to make won't even have a shot of happening.  Going after Bush's war crimes takes out our leadership and undermines our party to the point where the torturing fools would get back into power.  

                    While torture, like healthcare, should not be seen as just another political skirmish, that is how it is seen.  Without a major seachange in the populace, Congress has no reason to investigate, and if congress is not investigating, Justice is not going to touch it with a 10 ft pole.  The reality of how screwed up our system is, is evident when you look at all of things that need to be done because they are the right thing to do, but get blocked because of politics.

                    •  Why I Disagree With All of This (18+ / 0-)
                      1.  Your post reinforces the point of the comment to which you were replying: nearly all of the reasons you cite for Obama's non-prosecution of war crimes involve issues other than the law itself.  Administrations make choices about what laws they choose to enforce. You're just explaining why he made this particular choice, not disagreeing with the general point.  And Obama has chosen to vigorously enforce DOMA.
                      1. It is not Congress's job to prosecute crimes. Yes, Congress should have impeached Bush and didn't. But their failure to do so does not mean that everyone involved in the crimes of the last administration gets a free pass.  Impeachment is, by nature, a political act. The prosecution of crimes should not be.
                      1. There were absolutely Democrats who knew what was going on. They should be prosecuted, too.
                      1. I agree that a solid, bipartisan majority in Congress believes that the crimes of the last eight years were justified. I'm less convinced that the American people believe they were.  At any rate, public opinion, let alone political pressure, should not be a bar to the rule of law.
                      1. I simply don't agree about the quagmire argument. I have a hard time believing that Congress could get much less efficient than it is today. And the GOP is already essentially accusing Obama of treason for everything from HCR to KSM.
                      1. And if I did believe that prosecution would lead to a quagmire, I think I'd conclude: so what?  We need to come to terms with the last eight years. Our failure to do so is the best guarantee of a repeat performance.  The Republicans will, eventually, be in power again.  And they will be even more unstoppable without prosecution.  In addition, Obama's failure prosecute crimes that he is obligated to prosecute under international treaties is itself a crime.
                      1. I'm not a Democrat (and haven't been for more than a decade), so the effect of all of this on the Democratic Party is of less interest to me.  But I can tell you that the longer that the Democratic Party takes a Big Tent approach to warcrimes, the less likely it is that I'll ever rejoin my former party.
                      1. To the extent that torture is seen as yet another political skirmish, it must be the goal of everyone with so much as a shred of human decency to change that state of affairs. Accepting it is simply not an option.  This situation is not the fault of our population, but of our political elites from both major parties (and beyond).

                      Policies that were wrong under George W. Bush are no less wrong because Barack Obama is in the White House. - Bob Herbert

                      by GreenSooner on Fri Nov 27, 2009 at 03:15:58 PM PST

                      [ Parent ]

                      •  I agree with almost everything (0+ / 0-)

                        except that merely knowing torture was taking place is not a crime, and I can't see prosecuting members of Congress simply because they knew bad things were happening. Especially because some of them may have been sworn to secrecy about the crimes.

                    •  It's up to the Justice Department (2+ / 0-)
                      Recommended by:
                      pgm 01, princessglitterboots

                      to prosecute war crimes. It is not up to the President, who should butt out of it.

                      What you post is a graphic illustration of the kind of bad thinking on illegitimate Executive power that infects the Obama Administration. The fact that doing something right would decrease their power to do wrong is a reason to do the right thing, but starting with Senator Obama's vote for retroactive immunity for telecoms that spied indiscriminately, he's repeatedly chosen to do the wrong thing for bad reasons. And the sad thing is that the Legislature, which should have been guarding its institutional power against Executive abuses all along, has collaborated.

                  •  See my post below on this. (0+ / 0-)
                  •  Big difference ... (1+ / 0-)
                    Recommended by:

                    ... between prosecutorial discretion and even-handed enforcement of civil law.

                    Show Dems in R-Leaning Districts Who Voted For Health Care, Against Stupak: We've Got Your Back

                    by Adam B on Fri Nov 27, 2009 at 07:19:47 PM PST

                    [ Parent ]

            •  I wouldn't mind if he enforced all laws (38+ / 0-)

              with the zeal with which they defend anti-gay laws.  Look, there's hundreds of financial fraud cases they don't touch.  They won't look at Don Siegelman's prosecution.  They won't look at misconduct by Bush people, or Cheney.  They only "have to enforce the law" when the victims of their policy are perceived to be weak and there is some perceived upside to him in looking strong against this group.

              Your new Democratic Party: Billions for the bankster boys and not one dime for abortions. Even if it's your dime.

              by Mimikatz on Fri Nov 27, 2009 at 01:39:37 PM PST

              [ Parent ]

              •  h/t to you for engaging Christy1947 repectfully. (15+ / 0-)

                Had I responded directly, I'd have been tempted to type, "How can you write that with a straight face, when the Holder DOJ has CHOSEN to not prosecute war crimes?"  

                My God, there should be an award for achieving the pinnacle of obtuseness.

                I SO want to believe it's 11DC.

                by WisePiper on Fri Nov 27, 2009 at 02:11:03 PM PST

                [ Parent ]

                •  Perhaps because I am trying to talk about the two (0+ / 0-)

                  pro LGBT decisions.  Had we been talking about war crimes, I wouldn't have posted, probably, having what I in other circumstances than that one  think of as an inappropriate tendency to rant and use bad language.  Which I am abbreviating here not for humor but for control as Rant Rant. I am trying to stay on topic, because the context of this one is an analytical quagmire out of which I would love, with others, to be able to figure out how to use these opinions to get protection for those who should have it now and should have had it long ago. Ranting will not help that. That one on which I was posting, is a battle of small steps and carefully calculated turns over a long period, where each step has to be done right, to get to where we have to get to, since Congress is not an option.

                  Ranting merely short circuits the mind, no matter how satisfying, and the problems of prosecuting torturers are a different set of legal problems with their own horrendous difficulties. I would not have asked the el foldo question on that one that I addressed above it this thread, where in this thread the issue is what is the best way for the administration to respond to this situation, in order to get a clean case up to SCOTUS or at least the Judicial Council of the US, the employer of record of the judicial branch. We may not be able to get all the relief on this LGBT DOMA issue with a clean swipe from these opinions, but if we can get rulings which at least protect all employees of one branch of government, or in one district, that is much much better than a stick in the eye.  

                  Torture is a different matter. A short and unsatisfactory to me but having no better,  answer to the torture issue is that I am a a lawyer and know the weaknesses of the legal structures to which I have dedicated my life, which includes the horrendous difficulties of prosecution of those accused of torture, when they are armed with all of those foul opinions on which their defense would claim they relied. We can disbar Bybee and Yoo, and the one who reissued them later, but that does not get around the ugly fact that those three and some others were asked their legal opinion, in a context in which they were authorized to give one, and they issued those (rant, rant, scream wail howl) opinions, using titles to do it on which the government is told  routinely and in less Rant Rant circumstances to rely. There are also, ahem, statutes of limitations which either have or soon will kick in which are not delayed when certain agencies are withholding evidence from DOJ, and the problem that prosecutions require actual admissible evidence, something which the CIA is burying as fast as it can, as it would rather explain how it destroyed ninety three tapes which were being sought, than what was depicted on any of those tapes. Sometimes a choice not to prosecute is either delayed until one can determine the provable facts of what happened, get the evidence together, etc, or is made because once the huge pile of the awful, in this case, is in fact gathered, the provable admissible evidence is either not there or not where they can get their hands on it or the witnesses because the CIA is hiding them,  or so smeared up by statutes, prior litigation history, loss of evidence and downright lying admittedly so to protect field agents and contractors, by those not in DOJ, that it cannot be made admissible or, I suspect in this case, that the prior government did everything in its power to preclude any prosecution, starting with the opinions and their statutory mods in the Bush second term done at threat of anyone voting against being branded TRAITOR, and that cannot be overcome in an Article III court. Prosecutors do not bring prosecutions unless and until they have a good faith belief that they can win. You wouldn't want them to weigh in first and hunt later for proof if you were the defendant.

                  There are also at least two nonlegal problems. The first one is that there are a limited number of competent hands in DOJ to do all of what DOJ is charged with doing, torture, DOMA, DADT, EPA regs, DOI forest protection, Off Shore drilling, Lily Ledbetter, the recently signed law adding LGBT categories to the hate crimes law,  and a huge gathering of other matters butchered in the last administration which they have to get to, and not all of those hands are newies rather than Bush holdovers, who can't be trusted with any of this as far as I could throw .....something I can't throw.

                  Given the number of issues in addition to torture which even the folk of dKOS insist all should have first priority and have spent the last week ranting about the fact that he didn't do their favorite issues first, that is a factor which must be dealt with, when you have X number of huge issues and Y number of competent hands, reduced to deduct Bush holdovers who got us all into all of this and still agree that what they did is right and the new guys won't be allowed to change it, as with the national security issues in the Spring trials and with Don Siegelman.

                  The second is political, and a choice with which I disagree was made to try to get essential reforms done, rather than spend all available time and effort on stuff the Repubs would literally come to Congress with guns rather than deal with probably because of the literal and perhaps actionable complicity of many. The legally rather minor matter of trying KSM in civilian court, small by comparison with torture, has already caused a huge firestorm. Closing GITMO is another. Stopping torture from continuing in places not officially named is another.  I can see the new administration having to pick which battles it needed to do as priorities, and deciding the battle of the year would be healthcare, with its benefits for milliions of helpless Americans, and stimulus bailouts and the like, just to keep the doors open. Cynical but unfortunately true. If they had started with torture, we would have done nothing but that from that day to this, all on the basis that nobody who was trying to protect the nation from the bombers, no matter how foully, should be punished because there is no going too far when one is thinking that it is legal and right to fight to protect the nation, or something like that. And you know and I do that the Hussein stuff would also have been pushed much more than it even has been now, not a citizen, a Muslim, a terrorist, etc etc.

                  Anyone responding to this comment will kindly respond to the LGBT issue because it deserves its own respect and consideration, no matter what other Rant Rant things are happening elsewhere. The easiest way to delay justice sometimes is to change the subject to something else which posters think is more important today or this week or by comparison, and then never get back to the original topic. Like fixing Stupak later, a later which it is now clear will never come, but in the meantime, you go with MY issue, not yours. I don't want this LGBT issue to get snarled up in other things.  If someone wants to start another, torture, diary, and talk about the choices apparently made on that subject, I welcome it but warn that I will come ranting and ugly, and not on the side of doing nothing.

            •  The oath and the law also requires the Obama (14+ / 0-)

              administration to investigate and prosecute anyone from the Bush administration who is suspected of approving of or engaging in torture.

              Funny how they completely ignore what the law requires in that case, yet they can muster the strength and courage to deny civil rights to a minority group.  Isn't it funny?

              Between excessive citizen activism and excessive trust or passivity, the former is far preferable to the latter. - Glenn Greenwald

              by An Affirming Flame on Fri Nov 27, 2009 at 02:19:03 PM PST

              [ Parent ]

            •  Torture / war crimes (8+ / 0-)

              Why doesn't the same rule apply to torture then?

              Pres. Obama and the DOJ are choosing to back off on that.

            •  Oath of office (1+ / 0-)
              Recommended by:

              "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

              Not the laws; the Constitution. But yeah, I do agree that the Executive Branch has a responsibility under the Constitution to enforce laws. I don't believe it has the responsibility to enforce laws the Courts have found unconstitutional, to flout court orders, or to appeal adverse judgments to the highest court.

              It's also widely accepted that prosecutory discretion exists. Just as the courts do not have to hear every case and controversy and the Legislature doesn't actually have to pass any laws, the Executive Branch doesn't have to enforce or advocate for every law. If it chooses to flout the will of Congress, that is a problematic Constitutional power struggle, but in a case in which a court has already ruled, the Legislature has no power to force an appeal.

              And choosing to flout a court order would put the Obama Administration in the company of such villainous organizations as the GW Bush Administration (in regard to rulings on prisoners held without charge) and segregationist governors in the South.

          •  So what's the general rule you'd have DOJs (3+ / 0-)
            Recommended by:
            wader, MnplsLiberal, MichaelNY

            in the future apply in determining when they can use their discretion.  Certainly Bush used his discretion to fail to enforce or to violate any number of laws and rules.

            So, let's say you're the AG in the DOJ, and a particular statute is being challenged as unconstitutional.  Obama applies the following test: 'if a statute is not obviously unconstitutional and has been upheld in the past by the courts, then it should be defended in court.'  That seems like a reasonable test to me.

            What test should be applied?

            Revolutionary Road was an awful, awful film.

            by burrow owl on Fri Nov 27, 2009 at 01:35:38 PM PST

            [ Parent ]

          •  So maybe they were (5+ / 0-)
            Recommended by:
            Dallasdoc, alizard, caul, Predictor, MichaelNY

            framing the case to force the circuit to rule against it? That might force it to the SC faster.

            Might be interesting to see what would happen now that there are some states that have legalized gay marriage. When DOMA was enacted, I don't believe that was the case.

            Especially since it's pretty clear...

            Article IV
            Section 1.

            Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

            I see that as stating that if you're married in one state, you're married in another. Same with divorce. That's been the case since forever. If it HADN'T been, you would have had interracial couples who weren't considered married for federal purposes just because they moved (that did go to the SC, and those laws got declared unconstitutional, remember?), people who would be considered bigamists because they got divorced in Reno and then remarried in NY, etc.

            And that's been settled for a long long time.

        •  Sure. But, it's also their job to prosecute (25+ / 0-)

          marijuana dispensories in California.  It may be legal in that state but it's still a federal crime.  If Obama can order the DOJ to back off on pot prosecutions he can order the DOJ to back off on DOMA defense.  

          "If you can find money to kill people, you can find money to help people." -Tony Benn (-6.38,-6.36)

          by The Rational Hatter on Fri Nov 27, 2009 at 01:23:53 PM PST

          [ Parent ]

      •  Oh, don't get me wrong. (3+ / 0-)
        Recommended by:
        mmacdDE, CWalter, keikekaze

        I don't like or appreciate how the Justice Dept., Obama's administration, or other players have dealt with this issue. I am not defending anyone, or making justifications. I don't believe this is some sort of masterful plan.

        I just can't believe that there's no one who piped up and said "Hey, this might be a problem down the road."

        It's glaring, and common sense, that you can't create two-tiered marriage benefits without running into a constitutional challenge.

        Since I don't believe it was full-bore incompetence, I have to cast about for alternative explanations.

        Of course, we had two-tiered civil rights for quite some time, so I suppose it isn't out of the realm of reason...

        I don't know the answers, just mulling out load, I suppose.

        -3.62, -6.21 Steadfastly refusing to comment on Sarah Palin since 11/16/09.

        by Zikar on Fri Nov 27, 2009 at 01:20:53 PM PST

        [ Parent ]

    •  It is Better for Obama and the DOJ to litigate (2+ / 0-)
      Recommended by:
      Matt Z, kafkananda

      It is the duty of the executive branch to defend the laws of the country - unconstitutional or not.  Even so, we should want to the DOJ to litigate such matters now.  If Obama and the DOJ decided not to prosecute these cases and have the courts declare DOMA unconstitutional (which it is), then when there is a change of administration they can just change the policy.  You would end up with a situation where people are not secure in knowing what their rights are.

      Obama and the DOJ understand this.  They need to fight DOMA (and they do not make the greatest arguments) and have the courts settle the issue once and for all.  Dodging the issue will only lead to another administration, one more supportive of DOMA, resolve the issue in courts.

  •  Is marriage a state matter or not? (65+ / 0-)

    The only way states can avoid the full-faith-and-credit clause and not recognize same-sex marriages from other states is to insist that marriage is a state matter, in which Federal regulations don't apply.  But then where does that leave DOMA?

    Marriage bigots can't have their cake and eat it too:  sooner or later the courts will catch them out.  The Obama administration, trying to have its cake and eat it as well, will be caught on the same dilemma.  

    Put up or shut up time is drawing nigh, Mr. President.

    To announce that we are to stand by the president right or wrong is not only unpatriotic and servile, but is morally treasonable to the American public. -TR

    by Dallasdoc on Fri Nov 27, 2009 at 12:13:28 PM PST

  •  actually . . . (22+ / 0-)

    I understand that the Obama administration has to uphold existing laws,

    . . . that's not necessarily true, least of all when one considers that Obama is following in the hallowed footsteps of his predecessors by issuing "signing statements."

    •  this is why we need universal heallth care (5+ / 0-)

      All of these questions would be negated if people
      could just pay for anyone they wanted to add to
      their insurance.

      What does it matter as long as the premium is paid.

      Who care what the relationship.

      This is so unnecessary,

      People should be covered no matter what. If they
      are constantly sick then maybe their premiums could

      I just think that if we could just buy insurance
      for anyone we would be better off.

    •  yes, I agree with you there (9+ / 0-)

      But I was trying to be fair to many (including many on this site) who believe that he has no choice on this matter.  But even if you believe that, the administration has gone too far imho.

    •  a long line of predecessors.. (1+ / 0-)
      Recommended by:
    •  No signing statements available for laws passed (2+ / 0-)
      Recommended by:
      Dunvegan, Matt Z

      before he became President. But you have to ask yourself do you want a President who doesn't agree with you on anything at all, neutralizing things you fought to get passed, by using signing statements. Separate and apart from the LGBT issue here, that is something you have to think about. To have O do that on your favorite issues is to facilite another Bush doing it against your favorite issues when another one gets in. Ds don't have a monopoly on the office and it often changes hands, so that we have to think about the Next Bush and do we want him able to do what the Last Bush did. Not just the issue on which he thinks to do it. Two separate issues. I personally don't want any Presidents simply negating legislation because they can write signing statements doing so and announcing they will not enforce them. No president, ever.

      •  Actually, I'd prefer he reject signing statements (4+ / 0-)
        Recommended by:
        LuvSet, slatsg, Dunvegan, vigilant meerkat

        and say, in this case, something on the order of: "I took an oath to protect and defend the Constitution, and I cannot defend unconstitutional legislation."

        •  The problem with that view is that he is charged (1+ / 0-)
          Recommended by:
          Adam B

          with ensuring that the laws be faithfully enforced. Every executive is in more or less those words. That's what the executive branch does, operates the government in accordance with the terms of signed legislation, including the vetoed where the veto is overturned. What if Bush had said, all women reading this, that he viewed Roe as unconstitutional and would not enforce it.  Or I think the Internal Revenue Code is unconstitutional, and won't enforce that. Can't do that. There once was a President who told his court, ok if you think that is the law, YOU enforce it. He has been castigated ever since for it. I think it was Andrew Jackson in the days of Marbury v. Madison or shortly therafter.

  •  It appears to me that (21+ / 0-)

    despite the constitutional scholar stuff during the campaign, he took office in a functioning unitary executive and he likes the power. I'm pretty disgusted at this point.

    "If I pay a man enough money to buy my car, he'll buy my car." Henry Ford

    by johnmorris on Fri Nov 27, 2009 at 12:32:43 PM PST

  •  Look for the current Supreme Court to uphold (4+ / 0-)
    Recommended by:
    davidkc, Turkana, BYw, ruscle


    •  no doubt nt. (1+ / 0-)
      Recommended by:
    •  Don't be so sure. Kennedy could vote with (8+ / 0-)

      the Liberal wing of the court.

      "The greatest thing you'll ever do is learn to love and be loved in return"

      by Liberalindependent28 on Fri Nov 27, 2009 at 01:17:45 PM PST

      [ Parent ]

      •  He has in the past on whether statutes (6+ / 0-)

        shitting on civil rights are constitutional.  He voted w/ the good guys in both Lawrence and Romer, so he can surprise on this issue.

        Revolutionary Road was an awful, awful film.

        by burrow owl on Fri Nov 27, 2009 at 01:24:21 PM PST

        [ Parent ]

        •  This is what makes me hopeful that these odious (7+ / 0-)

          marriage bans will be struck down in a 5-4 decision eventually. Olson is an intelligent Conservative arguing in our favor right now in the system from that proposition 8 case. Time will tell.

          "The greatest thing you'll ever do is learn to love and be loved in return"

          by Liberalindependent28 on Fri Nov 27, 2009 at 01:28:12 PM PST

          [ Parent ]

          •  Olson's value (2+ / 0-)
            Recommended by:
            Clarknt67, Liberalindependent28

            is his ability to talk the same language as a (persuadable) conservative like Kennedy.

          •  I think it depends on getting just the right case (1+ / 0-)
            Recommended by:

            before the court. Where the facts and the history of the case work forcefully to support the position we all hope for. I wish I could figure out how to get these two there, but I can't figure out how to get this one into district court, and then make sure that somebody appeals each decision on a ground that helps the ultimate cause. So I hope someone will find and push the proper one. SCOTUS can't rule if we don't get them the proper case, the one which has no side avenues down which they can duck, not ambiguities, no issues not raised for which they can send it down again for reconsideration by a lower court.

        •  Kennedy not only voted with the good guys ... (5+ / 0-)
          Recommended by:
          burrow owl, Dunvegan, Matt Z, Clarknt67, Pender

          he WROTE both Romer and Lawrence.

          I think a lot of people might be very surprised (pleasantly surprised) if this issue ever gets to the SCT.  Kennedy is conservative on many issues, but somehow not on this one.  I don't know for sure how he would ultimately go on marriage equality itself, but if I had to make a choice (gun pointed to my head) I would say that he would ultimately come down on side of equality.

          btw, from Lawrence:

          "... Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions ...

          ... Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom ..."

          the above does not sound like the words of a conservative on this issue.

          •  Tough call. (0+ / 0-)

            Anyone with a brain, I think, knew Scalia's dissent in Romer was correct when he predicted that invalidating morality as a rational basis of laws for due process purposes would inevitably come back to invalidate bans on gay marriage.  I think liberals knew that was the case and were heartened, and conservatives knew it was the case and were furious.

            I'm not sure Kennedy understood that.  

            If I'm right that he is that stupid, then his votes on Romer and Lawrence have no predictive value when it comes to the gay marriage ban challenge.

            Revolutionary Road was an awful, awful film.

            by burrow owl on Fri Nov 27, 2009 at 02:03:13 PM PST

            [ Parent ]

            •  maybe ? (1+ / 0-)
              Recommended by:
              Matt Z

              I agree that maybe he didn't understand that then, but it may be a moot point if his views are different now.  Kennedy is one Justice who is very, very conscious (and conscientious) re. how his opinions are seen by the world at large (look at his opinion declaring the death panalty unconstitutional for juveniles), and when it comes down to it I think would be very unlikely to come down against marriage equality knowing that the tide will eventually turn on this issue, and he would thus end up on the wrong side of history.  For that very reason alone, I'm inclined to believe he would be for marriage equality ... (and also, I don't see any anti-gay animus in any of his opinions; just the opposite in fact; so not sure why he would be against equality -- the fact that he leans right on other issues just may not be relevant here ... in either case, I'm hoping my gut feeling on Kennedy is correct !

            •  Kennedy is not that stupid (1+ / 0-)
              Recommended by:

              he just didn't address it. Marriage wasn't at issue at the time and he knew addressing marriage for same-sex couples would cause an uproar - which is, of course, the reason Scalia addressed it - Scalia wanted the uproar!

              Am I confident Kennedy would throw out DOMA? Not exactly. But I wouldn't be surprised if he did something along the lines the California Supreme Court in its Solomonic wisdom drew down the squawling babe in the case of Marriage v. No-marriage. The California Supreme Court unanimously said same-sex-marriage-in-all-but-name is legally the same as "marriage" when they upheld Prop 8.

            •  Missing the point. (1+ / 0-)
              Recommended by:

              The point is that Kennedy is broadly pro-gay. He's gotten out substantially in front of both Supreme Court jurisprudence and popular opinion to support gay equality twice in the past, and there's no evidence-based reason to think he won't do so again.

        •  btw, Kozinski was once a clerk for .. (6+ / 0-)

          Justice Kennedy; he's considered very libertarian.

    •  With 5 Catholics (13+ / 3-)

      On the bench, what do you expect?  Six, now, I suppose, including Sotomayor.

      Your new Democratic Party: Billions for the bankster boys and not one dime for abortions. Even if it's your dime.

      by Mimikatz on Fri Nov 27, 2009 at 01:44:53 PM PST

      [ Parent ]

    •  It won't happen (2+ / 0-)
      Recommended by:
      burrow owl, lostboyjim

      There are two aspects of DOMA - 1.) the federal recgonition of state marriages and 2.) state recognition of other state's marriages.

      The first one would be adjudicated on equal protections grounds and I really can't see how the court, even under ration review, can say that there is a rational reason for the Federal government to recognize some legal marriage and not others.  Even Kennedy in Lawerence said morality cannot be the reason.  I am sure Kennedy would side with the liberal wing on this issue.

      The second one is more complicated since that involves full faith and credit and courts have recognized a public policy exception to full faith and credit.  That is a tougher battle and I think Kennedy would side with the conservatives on this issue.  Still, this aspect of DOMA is unnecessary since states don't need federal law protection in deciding whether to acknowledge other state's marriages.

    •  Not necessarily (0+ / 0-)

      If the argument were framed more in terms of enumerated powers rather than equal protection, it might just fly with the "strict constructionists" on the Roberts Court.

      •  I just hope that they don't pick the decisional (1+ / 0-)
        Recommended by:

        thread which says that the Federal government can condition and limit those on whom it spends Federal money, ala Hyde ( and please don't use this to go down the subject matter, let me limit this to the legal basis as to the Federal government's latitude to determine on what it will and will not decide to spend taxpayer money and the SC willingness to accept those Federal decisions) That one worries me.And that is what I like about the two administrative decisions because there the Judicial Branch decided it wanted a nondiscriminatory policy, not a Hyde like determination that this one was ok and that one was not.

  •  Many thanks for the diary! Great happenings! (5+ / 0-)

    Stonewall was a RIOT!

    by ExStr8 on Fri Nov 27, 2009 at 01:01:52 PM PST

  •  Doesn't mean much. (1+ / 0-)
    Recommended by:

    Only thing that matters in regards to DOMA is the Supreme Court's ruling, which will suck.

  •  I would also like to tell.. (6+ / 0-)

    the federal government to take its Defense of Marriage Act and stuff it where the sun don’t shine

    after they repeal it, that is!

    "When I see an adult on a bicycle, I do not despair for the future of the human race." ~H.G. Wells

    by ridemybike on Fri Nov 27, 2009 at 01:05:42 PM PST

  •  Its going to get interesting (9+ / 0-)

    as more States get on-board.

    Oh no, the dead have risen and they're voting Republican. - Lisa Simpson

    by LaFeminista on Fri Nov 27, 2009 at 01:09:07 PM PST

  •  Wow....judges actually ruling in favor of peoples (10+ / 0-)

    inherent Constitutional rights of freedom and equality. Take note Mr. Scalia and Mr. Alito.

    "The greatest thing you'll ever do is learn to love and be loved in return"

    by Liberalindependent28 on Fri Nov 27, 2009 at 01:16:56 PM PST

  •  It's not beyond the realm of possibility (7+ / 0-)

    that the Obama administration WANTS to discredit DoMA, by having it fail in the courts. Obama has all but said that he wants it to be gone during his administration. Although how or if that will happen, given the problems with passing even tepid reform of health insurance, is a mystery to me.

    "The state has no place in the bedrooms of the nation." - Pierre Trudeau

    by fishhead on Fri Nov 27, 2009 at 01:17:57 PM PST

  •  Uh oh, DOMA's being challenged (12+ / 0-)

    Looks like Obama will have to start comparing gay marriage to pedophilia and incest again to protect it.

    Don't donate to the DSCC in 2010 - they'll give your money to Harry Reid. Donate to the candidates instead!

    by arcticshadow on Fri Nov 27, 2009 at 01:20:27 PM PST

  •  When I see the rhetorical and legalistic (27+ / 0-)

    contortions that folks are going through to explain -- once again -- why this really means that Obama's administration is pro-gay rights, I wonder why we don't just admit that neither this administration nor the Democratic Party are really committed to equal rights for gays.  They are for partial rights ("civil unions" or "extending certain benefits") but that's as far as it goes.  

    And no, that doesn't mean I think the republicans are better.  Don't be silly.

    "With all the wit of a stunned trout, prodigal stumbled clumsily into the midst of a discussion . . . " -- droogie6655321

    by prodigal on Fri Nov 27, 2009 at 01:27:51 PM PST

  •  The issue at hand appears to deal with the (5+ / 0-)

    definition of "family" under the Federal Health Benefits Act. It is quite proper for the Federal Court, 9th circuit, to make a ruling on this definition, as there is a federal employee claiming unlawful discrimination (by the AO)under the Act.

    The complaining party is legally married under California Law. She claims that her valid marriage entitles her partner to health benefits as defined in the Federal Statute. I would argue that the definition of the FHBA should be interpreted using its own language, and the 9th Circuit has appropriate jurisdiction.

    The justice department didn't need to get involved with this at all. They could have left it to congress (if they even cared) to rewrite the language. It seems like Marbury v. Madison gives the Federal Courts Jurisdiction.

    So instead of letting the decision stand, the Obama Administration has taken the side of defining family in a restrictive way in the Act. I don't know WTF they're thinking. This sure as hell is not traditional Democratic thinking that opposes discrimination, unless Obama wants this case to go to the Supreme Court. If he does, it's another case of where does he stand? I get more disgusted every day.

    •  The decision, frankly, is ridiculous. (0+ / 0-)

      The statute is unambiguous, and the ruling was carefully and disingenuously designed to work around the plain meaning of the text.

      Revolutionary Road was an awful, awful film.

      by burrow owl on Fri Nov 27, 2009 at 01:54:19 PM PST

      [ Parent ]

    •  Question for lawyers here. What is an el foldo (3+ / 0-)

      legal position here that would do what we want. Which is a SCOTUS decision.

      If you want a case to go forward to invalidate a statute you don't like, on the judicial side, do you aid the case moving more by invoking the hated statute cleanly so the other side gets a clear shot at it, or do you do something wishy washy and then have Conservative Justices  or judges use that wishy washy to say issue X was not considered and send it back down or distinguish it into nothingness. District courts count more than administrative decisions, and may have the right to reconsider them de novo under the Administrative Procedures Act or some such. Then Court of Appeals, and then maybe SCOTUS.

      Would a brief saying we agree that the statute is unconstitutional get what you want, which is Scotus, not the administrative appellate desk of the Judicial branch of the Federal Health Care Plan. An inferior  level decision which other courts might well say they could ignore because they outrank that administrative forum, even though there are two like decisions from it. But which decisions did not go beyond the administrative level because the 'defenders' folded. And can't go higher because nobody appealed the el foldo 'it's unconstitutional' brief.

      If you could move forward a case which would increase the spread of the right by a stone cold invocation of the offending statute, as here, knowing it might be stricken down as cleanly as invoked,  at the highest level you can get it to, what would you do.

      Think good old cynical legal tactics here. The decision is good news, but it is a touch above small claims court and at the far back of an administrative judicial thicket, and therefore more thought needs to be given to get this raised in a higher court where it will do wider good. But that means somebody appealing and appealing, and it won't be the two happy families as it now stands.

      I respectfully disagree with the 'leave it to Congress' approach. Think Stupak and all those other groups which weighed in and which have this as a core issue, where the need for justice is overwhelmed by the need for reelection.

    •  yes, it appears that way to me too (3+ / 0-)
      Recommended by:
      musing85, newpioneer, Clarknt67

      Kozinski's ruling had nothing to do with "marriage" per se, so for the Obama administration to decide to insert DOMA into this matter really seems like something it did NOT have to do.

  •  From a Conservative Judge (10+ / 0-)

    The ruling by Stephen Reinhardt wasn't a surprise, since he's a well known liberal on the 9th Circuit.

    Judge Kozinski, on the other hand, is famously conservative.  Getting this ruling from the right wing side of the 9th Circuit bench is fantastic.

    I stopped worrying about gay marriage when I found out it wasn't mandatory.

    by Tod on Fri Nov 27, 2009 at 01:30:04 PM PST

  •  More than one side has an interest in DOMA (6+ / 0-)

    I know many believe that the Obama administration is an enemy of GLBT community for various reasons and now somehow the conservative judges of the 9th Circuit are our friends in this matter, but I would advise caution.

    To be fair,Judge Alex Kozinski is not bat-shit crazy as other conservatives, but he is conservative nonetheless.

    It is very much in conservative interests to get DOMA to SCOTUS don't you think? You think waiting on Obama is bad, well having SCOTUS rule the monstrosity constitutional would be a catastrophe.

    It has long been part of the conservative movement to move along certain cases in order for them to receive a stamp of approval from SCOTUS. Justice O'Connor saved the day several times, Justice Kennedy might save the day at any given time now, but I wouldn't bet on it.

    I'd rather have Congress and the President step in , even if I have to wait for it, and take care of DOMA, than have this present SCOTUS to rule on it because I know for sure there are 4 votes against our position going in. You thought dealing with Senators Snowe and Lieberman was a chore, well we can't even pressure Justice Kennedy who will be the swing vote in such a case.

    So let us applaud these measures carefully for there may very well have been taken for sinister reasons.

    "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

    by sebastianguy99 on Fri Nov 27, 2009 at 01:55:53 PM PST

    •  .."they may have been..", not "there", sorry. (1+ / 0-)
      Recommended by:
      Matt Z

      "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

      by sebastianguy99 on Fri Nov 27, 2009 at 01:57:47 PM PST

      [ Parent ]

    •  Well thought out analysis, I really think Kennedy (2+ / 0-)
      Recommended by:
      Dunvegan, Matt Z

      goes with us on this item, though, but I could be wrong.

      •  Well there is evidence that would suggest... (1+ / 0-)
        Recommended by:
        burrow owl might be correct. Then there is his vote in Bush v. Gore.

        "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

        by sebastianguy99 on Fri Nov 27, 2009 at 02:57:07 PM PST

        [ Parent ]

        •  Ted Olson was with Bush in Bush v. Gore. (3+ / 0-)

          Look how that's turning out; he's the lead attorney on the pro-equality side in a case challenging Prop 8 on straight-up constitutional equal protection principles.

          This is not a 100% partisan issue. The Democrats and Clinton happily passed and signed DOMA and DADT, and Obama's official position is that gay people shouldn't be treated equally under the law. Meanwhile, Ted Olson, McCain's campaign manager, and Darth Cheney himself believe in marriage equality.

          •  This is an important point to highlight. (3+ / 0-)
            Recommended by:
            Predictor, Clarknt67, Pender

            We have a legitamate reason to be angry at Republicans AND Democrats still in Congress who voted for DADT and DOMA. And those people who try to say those two odious, discriminatory pieces of legislation saved us from worse things? W.T.H? Clinton signed into the law the two most discriminatory anti-Gay pieces of legislation in our recent history.

            "The greatest thing you'll ever do is learn to love and be loved in return"

            by Liberalindependent28 on Sat Nov 28, 2009 at 05:10:35 AM PST

            [ Parent ]

    •  I don't understand your point. It's a Federal (0+ / 0-)

      Statute and can be changed anytime.
      The complaining party in the case at hand wants her
      partner to have healthcare. What's so hard to understand? What do you think we've been talking about for the last 6 months, going to the moon?

      •  Understand that SCOTUS can say the law as written (2+ / 0-)
        Recommended by:
        AaronInSanDiego, burrow owl

        in total, or in part, is constitutional. Should that happen, it's a much different, and difficult course.

        So yes, it is part of the Federal Code, and so the best way to remove it is for the Congress to do so...before it becomes a matter before SCOTUS.

        Think of Roe v Wade(though not completely analogous), but sort of in reverse. Once the court made it's ruling, those who opposed it have had a difficult time trying to reverse it, though after some decades, they stand closer than ever to realizing their "dream".

        That is the potential danger here only this time we could find ourselves on the losing side. I'd simply suggest that waiting for Congress, while irritating beyond explanation, is far less riskier than placing the matter before this SCOTUS because we know going in there are 4 votes against our position. Who knows how Justice Kennedy, or for that matter, Justice Sotomayor will vote? The better chance for ridding ourselves of DOMA is with the Congress, before intervention from SCOTUS.

        "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

        by sebastianguy99 on Fri Nov 27, 2009 at 03:19:58 PM PST

        [ Parent ]

        •  Sebastian, the DOMA can be repealed anytime (0+ / 0-)

          there are enough votes to do it. Decision of SCOTUS is irrelevant. If the Act is found not to violate the 14th Amendment, it can be repealed the next day.
          If it's found to violate the 14th Amendment, it would be the death of it. However, the court could also find the language of the Federal Benefits Act too vague and say that it is unenforceable the way it is written. It could say a lot of other things too.

          DOMA and ROE v. WADE are totally different, and cannot be compared with each other. DOMA is an act of congress, and most acts are found constitutional. ROE challenged a state law, and the state law was found unconstitutional. ROE also created a fundamental right to privacy that became a constitutional right in itself, even though there was never a federal statute.

          ROE can never be repealed, because it never was a federal law; it's a right that is under attack by the religious right. Individual states can try to whittle away the right by making abortions hard to get, but congress will never pass a law making abortion illegal.

          As far as having DOMA amended by congress or ruled on by SCOTUS (if they would even hear it), it's not up to us, one way or another. It's about access to healthcare, and this woman's right to have her partner covered by insurance.

        •  We're debating here which of two sets of idiots (0+ / 0-)

          is more likely to do what we want. On this one reasonable minds may well differ.

    •  my concern is that scotus is (2+ / 0-)
      Recommended by:
      sebastianguy99, Clarknt67

      going to need to replace ginsburg or stevens before we get doma taken care of and we end with the conservadems and wingers hanging up a liberal appointee.

      that said, i don't think kennedy would want to side with the opposition just because we can already guess at how ugly and hateful they're going to get and who would want to be listed in the history books as on the side of the beckerheads and palinistas?

      .."In the end it all came down to one wonderfully simple principle: win or die."

      by princessglitterboots on Fri Nov 27, 2009 at 03:04:23 PM PST

      [ Parent ]

      •  One reason why we can't afford to sit at home (1+ / 0-)
        Recommended by:

        at election time. Issues such as those raised in regards to DOMA,Roe, and others are up for grabs with the Presidency and control of the Senate and so these folks talking about they are going to sit on their hands come election time because they didn't get all that they wanted in 2009 could screw everything up far beyond 2010 or 2012.

        "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

        by sebastianguy99 on Fri Nov 27, 2009 at 03:28:39 PM PST

        [ Parent ]

        •  The Bush administration plus the Republican (2+ / 0-)
          Recommended by:
          musing85, teloPariah

          majority in Congress held power for 6 solid years. Abortion rights were not eliminated and the constitutional amendment to ban same-sex marriage failed in the 2nd term. If the Republicans ever gave the religious right what they wanted it would mean they would no longer have issues to get them all angry about/against to vote for them.

          "The greatest thing you'll ever do is learn to love and be loved in return"

          by Liberalindependent28 on Fri Nov 27, 2009 at 03:33:44 PM PST

          [ Parent ]

          •  Yeah ok, go ahaead and take the chance (3+ / 0-)

            No one thought people would be stupid enough to show up at Presidential town halls with guns but......

            For the record,Justice Kennedy, not Congress or political strategy, is all that is standing between keeping abortion as it stands now and "turning it back over to the states".

            Should one of the 4 Justices friendly to our side leave, or die, and Republicans control the Senate and White House you can count on a case coming before the court.

            If you believe that abortion is the only reason while the "religious right" turns out then you are profoundly mistaken. It would only be the beginning. They will turn over even more power to corporate interests, they will roll back civil rights, and much much more. I strongly suggest you check out some conservative legal blogs and get yourself up to speed as to what will come our way should we lose one of the 4 friendly Justices (assuming Justice Sotomayor proves to be "friendly").

            Once they rule, then the constitutional amendment ball will be in our court, I would hope people would then get off their asses, but if you let this happen in the first place, I doubt the same people have the stamina to get it changed.

            The "religious right" is about power, getting it, holding it, and exercising it. It's as pure as simple as that. People on the Left still don't understand their political enemies and thus are doomed to continue losing until a wiser generation asserts itself.

            "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

            by sebastianguy99 on Fri Nov 27, 2009 at 04:16:08 PM PST

            [ Parent ]

            •  You're failing to understand that results are (0+ / 0-)

              what are needed and expected of the Democratic party at this point. The anger of many LGBT people at this site and beyond is not some random manifestation. It is due to a clear pattern of avoidance and deprioritzation of basic civil rights issues that need to be addressed. We are tired of watching basic protection from discrimination continue to be kicked down the road for a host of empty and sometimes bigoted reasons.

              I will never vote for a Republican, but I will from now on only vote for Democrats who lead by example in a clear record of meaningful words AND actions that bring about our civil rights. And again, to blame the victim who continues to have her and his justice delayed in the name of politics and a lack of priority is deplorable. I keep hearing people say they're for these things, but refuse to move beyond words to actually enact these policies.

              And also please spare me the lecture about not being 'wise'. We were the ones that helped then Candidate Obama in addition to solid majorities of Democrats in the House and Senate to get elected. What good is having such power if they choose willfully not to use it? If they choose to not address basic civil rights issues because there is ALWAYS something more important or costs too much political capital. This is not acceptable, and threatening us over the religious right is ignoring the current situation the DEMOCRATIC party has brought us to.

              All I hear is blaming the victim of discrimination and inequality at the hands of our government. And also citizens in California and Maine. It's really sad that people can't see they are blaming the wrong people.

              Blame the Democratic party for not living up to its core policies, values, principles, and even it's own damn party platform on civil rights.

              But sure as hell don't blame LGBT people for THEIR failures.

              "The greatest thing you'll ever do is learn to love and be loved in return"

              by Liberalindependent28 on Fri Nov 27, 2009 at 09:32:01 PM PST

              [ Parent ]

    •  I dont think Kozinkski expected WH to respond (2+ / 0-)
      Recommended by:
      Clarknt67, Liberalindependent28

      in the way it did, based on what I read of his order.

      •  one other thing (3+ / 0-)
        Recommended by:
        pico, Clarknt67, Liberalindependent28

        What I find intriguing about Kozinski's ruling is that he doesn't challenge DOMA at all.  He's challenging the right of the judiciary branch, not the executive branch, to decide on what benefits its extends to its own employees.  It has nothing to do with marriage or DOMA.  But if Kozinski's ruling stands, it could still be used as an argument to challenge DOMA.  So I really don't think Kozinski made his ruling as part of a larger plan to get DOMA to Scotus.  (Although I could be wrong!)

  •  Little described (1+ / 0-)
    Recommended by:

    "...throwing a dead fish into the lab of the Obama Administration." What I'm hoping for here is Sushi. We'll see how it works out, but it seems to me that the Judges have given the WH it's marching orders.

    Common Sense is not Common

    by RustyBrown on Fri Nov 27, 2009 at 02:16:27 PM PST

  •  Obama has to enforce unjust & cruel laws (7+ / 0-)

    because he has to enforce every single law, that's his job!

    As if.

    Everybody knows this is not the case. You can pretend it is. If you want to. But that don't make it so.

    /bitter grumping done.

    Thanks for the diary. It's a helpful update on those cases. And encouraging for what it tells us about the state of the judiciary.  

  •  Obama hates gay marriage and DOMA simultaneously. (1+ / 0-)
    Recommended by:

    =You've been triangulated!

    I'm serious, though. He opposed DOMA & voted against FMA, but he also opposes gay marriage: marriage = man + woman. Thumbs up to civy unions, though!

    "unless you have what's called the single payer system... you're probably not going to reach every single individual"--BHO

    by just some lurker guy on Fri Nov 27, 2009 at 02:51:43 PM PST

  •  I supported him. Voted for him. Gave money to his (15+ / 0-)


    And yet time and again his administration's actions have harmed my family. You can believe what you want as to how 'valid' his reasons are, but I cannot imagine myself supporting the campaign of anyone who harms me or my family, much less vote for them.

    I'm sorry some people here can't understand that.  You can stamp your feet and call me a troll, but it can't change how I feel and that is in a word 'betrayed' by the president so far.  I continue to hope that he will come around but I've seen little reason to think things will change any time soon.

  •  Agendas have been pushed so far RIGHT that we (10+ / 0-)

    think that Obama is a true progressive. While he talks the progressive game he is stringing us along as the GOP has strung along the Fundies. We are in a corner and need to apply pressure to the Democrats to be more progressive, if only to reestablish the center.

    Support Marriage Equality

  •  That dude John Berry (2+ / 0-)
    Recommended by:
    Clarknt67, Pender

    is kind of spineless though. Is there a reason he didn't just refuse the White House order (to Blue Cross) ? Surely he'd be threatened (rightly so) with termination, but the White House would be playing chicken with Berry's unannounced threat to "go public" with the reason he was fired.

  •  Thank you for such a well-constructed diary. (6+ / 0-)

    And on another note, if anyone gets a chance to catch the Ru Paul's Drag Race marathon on Logo, it is WELL worth the time... on many levels....

    As for all of this, the diary is so well constructed I have nothing to add.

    Except: It seems like gay people are holding a lot of dry powder for the Democrats. I'm getting tired of it. I'm another human being in the world, too, ya know.

    Can you politicians please find a smarter kind of politics that doesn't involve sacrificing my dignity and basic human rights for your party's gain?

    It's time to speak truth to crazy.

    by TX Unmuzzled on Fri Nov 27, 2009 at 04:04:18 PM PST

  •  John Berry needs to hear from us... (7+ / 0-)

    ...and can be reached at: 202-606-1000.

    It is the height of hypocrisy by one of the few openly gay Obama appointees to deny court-ordered spousal health benefits.

    Sorry, John....  on principal you should have resigned over this if ordered to deny these benefits.   There comes a point where principals count more than ambition.

  •  This is the chink O needs,to have better leverage (2+ / 0-)
    Recommended by:
    rainmanjr, FarWestGirl

    against Don't Ask Don't Tell.

    Kozinski's ruling opening the door to all members of a household being counted as "family" brings a pathway to backdooring the acknowledgement of same-sex families.

    Say you've got a gay relationship, one of them in the military. The non-mil could get the 'family' benefits merely by being part of the household.

    After all, relationship by blood is inapplicable, because a guy could have his wife's parents in his house and thus on his Tri Care plan - he doesn't have a blood relationship with them.

    And legal marriage is not an appropriate minimum standard to set either, because a guy could have the grandparents of his child - born out of wedlock - in his house and thus on his plan.

    And there's one angle to this that I want to highlight. The diarist noted that had the O admin kept it's head down on this, the ruling would have slid under the radar. And I submit that it is painfully obvious that judges always defend their sovereign territory as a co-equal branch not submissive to anybody anywhere else. Do the math - the O administration is acting the role of the plywood 'bad guy' targets you see in shooting courses. They want to be shot down, NEED to be shot down, to create some landmark judicial precedents.

    These two cases are the anchor point. Nobody tells the judges how to act in their own house, and tying same-sex equality to that, so that a judge who wants to treat gays inequally must submit to congressional DOMA or executive orders is the judicial version of "A poison pill in the bill".

    •  Passive-aggressive fierce advocacy (3+ / 0-)

      Do the math - the O administration is acting the role of the plywood 'bad guy' targets you see in shooting courses. They want to be shot down, NEED to be shot down, to create some landmark judicial precedents.

      aka 11th dimensional chess.

      Sometimes the simplest suggestion is the best: it's easier to pursue business and politics as usual. In other words, stick it to the gays, as Clinton did. There's never been any serious political price to pay for it. Why would there ever be?

      The Obama administration has fired 525 soldiers for being gay as of 11/25/09.

      by Scott Wooledge on Fri Nov 27, 2009 at 06:08:12 PM PST

      [ Parent ]

      •  Simple isn't always accurate, though. (1+ / 0-)
        Recommended by:

        It's true that O doesn't have all the strength we would hope.

        And, it doesn't have to be 11 dimension chess. The administration isn't all Obama, all alone.

        And, it's even simpler to figure that those thousands of smart people in the WH know the right is turning into a twitchy over-reactive rabid thing that will lunge at their perceived issues with no thought to the big picture, so they wave the red flag right in front of something that is immovable.

        So that the right bashes their own head in. That's an image we've all seen on cartoons since time immemorial. I can't tell you how many times that trick was played in a Tom and Jerry cartoon, or Bugs and Daffy were good with that too.

        •  You're just speculating, as am i (2+ / 0-)
          Recommended by:
          musing85, Liberalindependent28

          We don't know why the OPM is choosing to go to the matt on this.

          Are you say it's impossible it's afraid of RW attacks if it isn't sufficiently aggressive in making things difficult for gay citizens?

          We just don't know what's motivating it. I personally will wait before ascribing some brilliant, heroic motives behind it.

          The Obama administration has fired 525 soldiers for being gay as of 11/25/09.

          by Scott Wooledge on Fri Nov 27, 2009 at 08:05:51 PM PST

          [ Parent ]

          •  I'm not a singleminded neocon, so (1+ / 0-)
            Recommended by:

            I cannot say it is impossible that the administration is wary of seeming "pro gay". We all know that in a white house administration with some what, 4 thousand staff, that it's possible for just about any perspective to be found. However...

            I feel it's more reasonable to characterize the O administration's actions on this as someone saying:

            "Hey, we've got our hands full working healthcare and the economy, behind the scenery for full effect. And it helps if those hypocritical pavlovian nutjobs stay riled up and frothy. So let's point the flashlight on those judges and let the anti gay right go fight them for a while. It'll keep at least a few of them out of our hair for a while at least."

            That's it. Just a simple "Point those fucks somewhere else" motivation, plus just a few people out of those 4 thousandish who have the idea to at least aim those anti gay neocons in a helpful direction.

            The rest... That it could turn into the Anti gays fighting to neuter the judicial branch opening themselves up to "Defend the Constitution!" cries from us, or the delicious irony of some republican appointed judges going all Scorched Earth on gay equality like was happening to Orly Taitz the birther queen, or that the anti gay could make the independent voters even more uncomfortable with the republican party...

            All that is just gravy when the original desire was just to get these people to look somewhere else for a while. Of course, that's my supposition. No proof, but Occam's Razor and all that.

      •  it's sad how any opinion you don't agree with (0+ / 0-)

        you bring out this tired straw man.

  •  I doubt that the administration's (6+ / 0-)

    industrious enforcement of DOMA is going to win it enough points from the right wing to get them to compromise on other issues.

    Economic Left/Right: -4.00 Social Libertarian/Authoritarian: -6.82

    Your argument is not Scottish.

    by AaronInSanDiego on Fri Nov 27, 2009 at 05:04:56 PM PST

    •  ya think? (5+ / 0-)

      All of this is a game.

      Here's my read.

      Right to the absolute brass tacks of it all:

      Following the 'conventional wisdom' of DLC jackasses like Bob Shrum and Terry McAuliffe, people inside Obama's political war room are fed bullshit and believing that the midterms are politically hamstringing Obama. Therefore, he's hesitant to take on any 3rd rail issues in an off year that might harm chances for Congressional Democrats. Trying to quell the re-energization of Rove's base by appeasing these asshole will not work.

      It's time for Obama and the Congressional Democratic leadership to cut all the bullshit loose, cut loose the idiotic 'conventional wisdom' and let it all hang out.

      Meanwhile, what Obama's political team is missing is that the country is begging for bold leadership from the WH and Congress on a number of issues. Bold leadership is what is not only morally correct, but it's also politically correct.

      Look at Reagan, and look at the 1994 Republican 'Contract on America'. It is bold leadership that gets rewarded, not kowtowing to the other side.

      When the hell someone inside the WH and Congress gets a damn clue .. I have no damn idea.

      Try to make it real, compared to what.

      by shpilk on Fri Nov 27, 2009 at 05:16:24 PM PST

      [ Parent ]

    •  Exactly (3+ / 0-)

      If Obama continues caving to the wingnuts, he's going to lose plenty of votes...but get none in return. He's already betrayed the LGBT community and the pro-choice people several times, who is next?

      Don't donate to the DSCC in 2010 - they'll give your money to Harry Reid. Donate to the candidates instead!

      by arcticshadow on Fri Nov 27, 2009 at 05:40:50 PM PST

      [ Parent ]

      •  They are shedding many votes (1+ / 0-)
        Recommended by:

        and gaining virtually none with this strategy. He's not going to change the system by giving the right bushel after bushel of carrots. There has to be a stick at some point.

        "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

        by craigkg on Fri Nov 27, 2009 at 10:26:19 PM PST

        [ Parent ]

  •  This is following the same pattern that (3+ / 0-)
    Recommended by:
    alizard, davidkc, drache

    the Civil Rights issue followed: court decisions will force the LGBT rights issues into stare decisis at Federal level.

    The concept of 'do not alter that which has been established' will be difficult to overrule. But it will be challenged by every trick in the book,  probably by mostly those very same States that resisted the incremental steps along the way towards the Brown v Education, the Civil Rights Act and the Voting Rights Act.

    The majority of Americans, when polled honestly and fairly are in support of LGBT rights to marry.

    Let those States that want to take positions as the cow on the tracks be crushed by history.

    Meanwhile, I want to see the WH getting a clue about getting the hell off the tracks, because if they don't this will become very ugly, very quickly from the majority of people in this country who are tired of American Talibanism.

    Try to make it real, compared to what.

    by shpilk on Fri Nov 27, 2009 at 05:05:48 PM PST

  •  wake up folks! here's what's going on... (2+ / 0-)
    Recommended by:
    rainmanjr, drache

    Obama is a Constitutional scholar and the proudly self-proclaimed "mongrel" son of a marriage that itself would have been illegal in many states through years of his own childhood.  There's no way he doesn't know what's up with the right to marry.  

    If the Administration merely applied remedies through executive policy, those remedies would hardly have the strength of remedies provided by court decisions.  Those policies could be overturned by the next president and then we would be back to square one eight years later.  

    What I see here is a strategy to make pro-forma arguements before the courts, that will result in piling up a series of court decisions against DOMA.  When the time comes to take this to the Supreme Court, there will be a series of standing decisions in multiple federal Districts.  

    The Supreme Court will be faced with the choice of overruling all of those, or deciding in accord with them.   Which is the more probable outcome?   The more District court decisions we have in our favor, the greater the probability that the Supreme Court will rule for equal rights.  

    •  Indeed, (0+ / 0-)

      as I posted stare decisis, and existing legal marriages in a number of States will make this whole issue ultimately one decided by the Courts.

      But it would be nice if the WH got the hell off the damn tracks.  

      Try to make it real, compared to what.

      by shpilk on Fri Nov 27, 2009 at 05:18:07 PM PST

      [ Parent ]

      •  if they didn't make pro-forma arguements.... (0+ / 0-)

        ....there would be no way to get those court decisions in the first place.

        The standing on train tracks is a symbolic gesture only.  

        And it would probably be possible for others who are experts in constitutional law, to look at the DOJ arguements and demonstrate that those arguements really are pro-forma but designed to look real to casual observers.  

        •  Let me get this straight (6+ / 0-)

          The rulings from Federal Court that are showing that DOMA is unconstitutional need to be challenged by Obama so that we can get court rulings that DOMA is unconstitutional... you know, court rulings that we already have, and that, incidentally, will stand as law unless the Supreme Court accepts an appeal/decides to take up the issue (in which case we'll get the higher court ruling without Obama's DOJ standing in the way).

          The new levels of contortion people are willing to make in an attempt to defend Obama on this are really stunning.

          "Heterosexuality is not normal, it's just common." Dorothy Parker

          by dedmonds on Fri Nov 27, 2009 at 06:24:55 PM PST

          [ Parent ]

          •  I couldn't agree more. (3+ / 0-)
            Political gymnastics 101: "They fight us, because they love us!"

            I'm not so invested in putting a white hat on the Obama admin, that I am personally going to do all those mental gymnastics. I wouldn't advise anyone else to with a matt.

            The Obama administration has fired 525 soldiers for being gay as of 11/25/09.

            by Scott Wooledge on Fri Nov 27, 2009 at 09:10:38 PM PST

            [ Parent ]

          •  not contortion at all (1+ / 0-)
            Recommended by:

            Obama and the WH as members of the executive branch are charged with implementing the law.

            Right now that includes DOMA but unless Obama has been lying since before becoming a state senator he's never supported DOMA nor regarded is as constitutional.

            Thus there's a very simple and convincing argument to be made here, that is if you can open your mind.

            •  Not one but TWO Federal judges (2+ / 0-)
              Recommended by:
              musing85, Liberalindependent28

              are ordering Obama to give these court employees' spouses their benefits or the compensation for those benefits...under court order. Basically the OPM refusal amounts to Obama  asserting that the judicial power of the United States is vested in him rather than  the Supreme Court and lower federal courts. One judge said DOMA is unconstitutional. The other said that he didn't need to decide that question of law since the Judiciary's power as a co-equal branch of government gives it the authority to run its branch as it sees fit, meaning they can say same sex spouses of Federal Court employees get benefits, DOMA notwithstanding. Obama and the Executive Branch don't have the power to say to the courts "our interpretation of the law is different and out interpretation is supreme to yours" because it is precisely the function of the courts to determine what the law is, not the executive. The OPM and the Obama Administration may soon find themselves at the wrong end of a writ of mandamus and if they violate that a contempt citation. Obama is essentially giving Andrew Jackson's retort to the Supreme Court's ruling in favor of the Cherokee in their relocation case: "John Marshall has made his decision. Let him enforce it." If they ignore this order and a subsequent writ of mandamus, sufficient cause for an article of impeachment would exist.

              "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

              by craigkg on Fri Nov 27, 2009 at 10:12:13 PM PST

              [ Parent ]

              •  which is all very good (1+ / 0-)
                Recommended by:

                because I want a spirted defense of DOMA, so that when it goes down in flames it stays down.

                PS paragraphs are your friend

                •  Spirited Defense (1+ / 0-)
                  Recommended by:

                  If you want as spirited defense then let Focus on the Family Anus or the "Liberty" Counsel or a consortium of NOM, the FRC, Sarah Palin, the KKK, the Catholic Church and the Church Political Action Committee of Jesus Christ of Latter-Day Saints Bigots have intervenor status and let them defend the law. If Obama believes DOMA is unconstitutional, his duty is to the Constitution, not to DOMA. By defending DOMA, Obama is saying he thinks the discrimination is valid. Of course he said as much during the campaign which is one of the biggest reasons I didn't vote for him. I won't support anti-gay bigots. And before you coming rushing to Obama's defense that he isn't a bigot, would you seriously say that a person who defends miscegenation laws as constitutional because his personal religious  beliefs declare that marriage is between a man and a woman of the same race isn't a bigot? Would the fact that he thinks race-mixing couples should be entitled to pretend marry with "civil unions" really make the bigotry any more palatable? You of course claim he really does support marriage equality in private and only opposes marriage equality publicly for political reasons, but that makes him a liar willing to warp his own rhetoric to re-enforce bigotry. Neither is acceptable.

                  "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

                  by craigkg on Fri Nov 27, 2009 at 10:54:16 PM PST

                  [ Parent ]

                  •  actually Obama's duty is to the law (2+ / 0-)
                    Recommended by:
                    burrow owl, G2geek

                    it's the court's duty to decide what is and isn't constitutional.

                    And what better challenge then from the government?

                    You are conflating what Obama personally thinks and what he is duty bound to do. I'd rather you not do that as it borders on smearing the man.

                    •  Buy a clue (2+ / 0-)
                      Recommended by:
                      musing85, Clarknt67

                      The Constitution is higher law than DOMA. If Obama's duty is to the law he has a greater duty to see that the Constitution's guarantee of fundamental rights, including the right to marry and the right to equal protection, are protected from infringement even if that infringement is from the government itself. DOMA, as a statute, is less important than say the 5th and 9th Amendments.

                      "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

                      by craigkg on Fri Nov 27, 2009 at 11:15:18 PM PST

                      [ Parent ]

                      •  you obviously need a civics class (1+ / 0-)
                        Recommended by:

                        as you don't seem to understand the division of power between the 3 branches.

                        Good night

                        •  Apparently not... (2+ / 0-)
                          Recommended by:
                          musing85, Clarknt67

                          ...given this diary is about your guy defying court orders with a Federal appellate judge threatening to issue a writs of mandamus to extract compliance with the order the administration failed to appeal or file suit against months ago when the original order was issued.

                          Moreover Obama has decided that the Federal narcotics laws of the United States  are invalid in so far as they are inconsistent with the medical laws of several states with respect to certain drugs prescribed and under for medicinal purposes.

                          And Obama has decided, via signing statement, that a portion of the Omnibus Public Lands Management Act of 2009 is unconstitutional and that he will not comply with that provision he, as the unitary executive/decider, has found and declared to be unconstitutional. Apparently like his predecessor, Obama has found invisible ink in the Constitution in Article III that conveys to him some of the judicial power of the United States.

                          "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

                          by craigkg on Fri Nov 27, 2009 at 11:36:36 PM PST

                          [ Parent ]

                  •  Well put, Mr. Cheney. (1+ / 0-)
                    Recommended by:

                    Cheney, of course, developed precisely your theory here, and put it into place in the Bush administration: the Presidency determines the Constitutionality of laws itself, independently of courts or Congress, and puts that determination into effect through its actions.

                    Revolutionary Road was an awful, awful film.

                    by burrow owl on Sat Nov 28, 2009 at 04:15:17 AM PST

                    [ Parent ]

                  •  dude, paragraphs are your friend. (0+ / 0-)

                    Separate your paragraphs.  

                    Makes them easier to read.

  •  why this hasn't happened before... (0+ / 0-)

    ... obviously being a gay American in and of itself was a strike against any federal employee under the Bush Administration.  They couldn't risk DOMA being challenged from within while in office.

    Just the fact that the Obama Administration would even hire gay people within the Administration left them open to DOMA lawsuits - thus leaving them politically vulnerable on the right.  What the Administration doesn't seem to get is that the right will give them no credit for defending specious laws like DOMA or DADT, but from a "law of the land" aspect I guess it is incumbent for the Obama DOJ to defend the law of the land while it is, unfortunately, still that.

  •  Despite insistence to the contrary, (8+ / 0-)

    Obama's DOJ does not need to vociferously defend DOMA.

    Former Clinton staffer Richard Socarides, have affirmed that the defense of DOMA is a choice on the part of the adminstration. Link here.

       I was equally troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.


       From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.

       Thus, the general rule that the DOJ must defend laws against attack is relative – like everything in Washington. And even when the DOJ does defend a law against constitutional attack, it does not have to advance every conceivable argument in doing so (such as the brief’s invocation, in a footnote, of incest and the marriage of children). In fact, many legal experts believe that in this particular case none of the issues going to the merits of whether or not DOMA is constitutional needed to be addressed to get the case thrown out. The administration’s lawyers could have simply argued, for example, that the plaintiff’s had no standing. There was no need to invoke legal theories that were not only offensive on their face, but which could put at risk future legal efforts on behalf of our civil rights.

    Furthermore, it's one thing to defend DOMA from legal challenges; it's quite another to defend it from Federal Court rulings....

    "Heterosexuality is not normal, it's just common." Dorothy Parker

    by dedmonds on Fri Nov 27, 2009 at 06:18:47 PM PST

  •  Personally, I think that this is part of a (2+ / 0-)
    Recommended by:
    FarWestGirl, MichaelNY

    strategy to ensure that both the ~act~ of upholding existing laws and the ~manner~ of (and components of) the defense of those laws will ensure that the DOMA is nullified by the courts.

    I think the reason for that strategy is to give the Administration an opportunity to back-handedly do what they'd said, without explicitly initiating something that the wingnuts would use to add more fuel to the fire.

    It's a strategy I think Obama's been using for several of the items that BushCo and the GOP put in place, and which the wingnuts and their masters were waiting to pounce on the Obama Administration for; by doing what they're doing, they defuse the GOP's wingnut tactics on these issues and still ensure that the courts eventually overturn the stupidity.

    It's just my opinion, but it looks (to me) like it's being employed on a couple fronts while the Admin deals with the biggest wildfires left behind in the burning garbage dump that the neocons left covering the nation.

    A corrupted government. Patriots branded as renegades. This is how we roll.

    by GreyHawk on Fri Nov 27, 2009 at 07:32:37 PM PST

    •  You could be right -- however (5+ / 0-)

      Obama will be blamed by the right no matter what he does.  He can be an obstructionist (as his amin. is currently) for LGBT rights.   Or he can allow the courts to do their job.  

      Either way (and frankly even if it happens when the next Republican President is  in office) Obama will be blamed for setting the stage for it.  

      So... since he is going to be blamed regardless, he should be doing the right thing.  Otherwise, he will be blamed by the right, and not given credit by the left.    

      •  I think he'll make the time to address it (4+ / 0-)

        directly before the third year in office...I think this is his approach just while the other hottest of issues are being so ardently fought by the GOP and undermined by pseudo-Dems.

        Once he gets a little headway and breathing space -- and, ideally, quells some of the idiocy from the right -- then I think he'll take on issues like DOMA more directly if the courts haven't already dealt with it by then.

        Either way, he's going to get criticized...but he's got perhaps the biggest mess across a variety of fronts to deal with than any of his predecessors, and more landmines placed intentionally to prevent him from being able to address a lot of the issues directly w/o being blown out of the water.

        I hope I'm right -- it would match up to what I'm seeing in a few spots, but there have been some moves that don't sit well with me even if the above is his primary strategy.

        A corrupted government. Patriots branded as renegades. This is how we roll.

        by GreyHawk on Fri Nov 27, 2009 at 08:30:04 PM PST

        [ Parent ]

        •  I hope you're right, (2+ / 0-)
          Recommended by:
          GreyHawk, MichaelNY

          but based on everything we've seen from the Fierce Advocate, I'm not going to hold my breath.

        •  Why would he want to give them breathing space (0+ / 0-)

          Bush's tenure showed that the best way to accomplish lots is to just keep piling it on.  Overwhelm the neanderthals and let them scream at tea bag rallies.  

          Just keep doing progressive things that are right and fair.  

          •  Part of the reason for this approach, (0+ / 0-)

            I think, is that he didn't have enough of a Congressional power base.  The GOP still has enough influence to hold up and derail and obstruct effectively, and the Dems aren't as good at wielding power to bully their way through.

            As he makes more progress, and in particular if the Dems clear out a few more Republicans and replace a few of their Liebermanesque Dems, then it should be easier to move forward amid the screeching psycho-sects and get stuff done.

            A corrupted government. Patriots branded as renegades. This is how we roll.

            by GreyHawk on Sat Nov 28, 2009 at 08:16:05 PM PST

            [ Parent ]

    •  I hope you're right, but I'm skeptical (1+ / 0-)
      Recommended by:

      The White House actions in the Kozinski case seem over the line to me.  For one thing, Kozinski is not challenging DOMA at all, so to me it soesn't seem to be terribly productive to go out of their way to deny health coverage for Golinski's wife as part of a longer term strategy to get rid of DOMA.  

      Besides, the wingnuts are going to attack Obama on this no matter what he does, so why not just do the right thing?

      •  Exactly. And people have to remember the (2+ / 0-)
        Recommended by:
        davidkc, Clarknt67

        administration has blocked court challenges to DOMA as well. So, not only is the inaction the problem, but willfull obstruction to what could have been potential progress in federal court on more then one occasion. For a party and an administration that contends it is on the same page about civil rights they sure have not acted much like it either in some ways.

        That said, the President has done good things too like extending benefits to federal employees and ending the HIV travel ban Executive order. While this progress is wonderful it is still wrong to obstruct for fear of the courts actually making the Democrats deal with these issues they obviously avoid at all costs.

        "The greatest thing you'll ever do is learn to love and be loved in return"

        by Liberalindependent28 on Sat Nov 28, 2009 at 05:50:48 AM PST

        [ Parent ]

  •  1 Kossack in 7 understands DOMA is Constitutional (0+ / 0-)

    according to a recent poll.

    The other 6 out of 7, on the left, are sure it's NOT constitutional.  But are they Constitutional Lawyers?

    I've never explained why I think DOMA could be constitutional, and I don't have to.  My justice department has done it even better than G. W. Bush's did.  Incest, child marriage, ....  Need I say more?

    I'm a Constitutional Law professor and I'm the President - so you should ignore those activist, leftist west coast federal judges and trust me.

    We've got a lot on our plates.  Providing universal health care like the other civilized nations, ending usury and fraud in the financial sector that wrecked the world economy when Wall Street types ran the Fed, ending indefinite detention and protecting habeas corpus, ending two wars in the Middle East, and so on - what I promised when you voted for me.

    I suggest you create a fund now for all the orphans and widows of gay people who are being denied federal benefits because my administration won't recognize their rights.  

    Because I don't think Congress will create such a fund even when I do my best to end DOMA in 2011.  Those darn Republicans!  You're right to blame them.

    I knew you'd understand.

    •  Your snarking is too complicated (1+ / 0-)
      Recommended by:
      Not Barack Obama

      The diary you referred deals with too complicated a subject for your oddball snark. Like me goofing on some theory about operating system software, that like 1 in 100 people here would get.  Or trying to read "Being and Nothingness," which was aimed at a few hundred philosophers and was entirely opaque from the first paragraph. It is best to lay your case out clearly. I could use it.

      "How I hate those who are dedicated to producing conformity." William S Burroughs

      by shmuelman on Fri Nov 27, 2009 at 08:56:18 PM PST

      [ Parent ]

      •  you're right, I'll talk straight (3+ / 0-)
        Recommended by:
        iyou, carolita, shmuelman

        Everyone here (well, 6 out of 7) know DOMA is at odds with the Constitution - you don't need a law degree.

        Folks in these diary comments are even psychotically claiming that the real reason I'm following Bush's policy to the letter is, so it triggers court cases that will have the reverse effect - that somehow Justices Scalia, Thomas, Roberts, and Alito will be more liberal than my Justice Department and me.

        My ridiculous "snark" is aimed at those loyal servants.

        For you, I'll admit I'm escalating 2 wars, rewarding fraud and usury in banks that are getting even bigger, propping up drug and insurance companies instead of providing universal health care, continuing military tribunals as well as indefinite detention without charges, moving Guantanamo to Bagram, Afghanistan, and simply renaming two other "wars" - on Drugs and on Terror.

        And of course, gays can s*ck on it and vote for a Republican or Kucinich if they don't like the way I'm treating their families.  I told Rick Warren before the election that Marriage is for a "man and a woman" and they voted for me anyway.

        Thanks for your frankness.  You deserved mine in return.  I hope I'm not punished for it.

        •  I think Obama is more concerned with process and (0+ / 0-)

          the rule of law than prior administrations.  This is reflected in his approach to both health care reform and issues like DOMA/DADT, where he's "faithfully upholding the law" while simultaneously supporting Congressional and judicial action to change the law.  Court cases like those discussed in the diary expose the fundamental inequity and impracticality of DOMA, and will create change that the Executive can implement.  As much as I disagree with the current law, I'd much rather have a President who follows the law than one who doesn't...even if that means injustice for those currently affected.

        •  Thanks, In the anonymity of the (0+ / 0-)

          dkos comments, often the message can be lost. I would like to disagree with you, but I can't.

          "How I hate those who are dedicated to producing conformity." William S Burroughs

          by shmuelman on Sat Nov 28, 2009 at 10:29:44 AM PST

          [ Parent ]

  •  It is good to see the Obama admin uphold (2+ / 0-)
    Recommended by:
    davidkc, p a roberson

    the rule of law - as long as it doesn't pertain to the executive branch.
    This administration needs to pull it together big time, get rid of all the Bush douche bag prosecutors, and put forward thinking judges on the federal bench. How come Bush could give a big "FUCK YOU" to American law with total impunity, but the Obama administration won't stand up for its own ideology and its own base? I am sick of all this timid bullshit.

    "How I hate those who are dedicated to producing conformity." William S Burroughs

    by shmuelman on Fri Nov 27, 2009 at 08:44:32 PM PST

  •  Any Know The Count Of "Bombshells"? (0+ / 0-)

    They all seem to be duds anyway.

    They flame out to never be heard of again.

  •  I move that henceforth DOMA be referred to as (4+ / 0-)

    The Denial Of Marriage Act

    That's what it is, after all.

    Now can I have my pony?

  •  any day now, Obama is going to (2+ / 0-)
    Recommended by:
    davidkc, Liberalindependent28

    start showing some love to the left... i just know he is.

    Keep Religion in Church

    by titotitotito on Sat Nov 28, 2009 at 04:43:36 AM PST

  •  Doesn't Kozinski's order also call DOMA (2+ / 0-)
    Recommended by:
    Freiheit, Liberalindependent28
    into doubt?  If he felt he had to interpret the Federal Health Benefits Act so as to allow benefits for same-sex spouses, because otherwise there would be a serious constitutional problem, why wouldn't DOMA's disallowing benefits for same-sex spouses present the same constitutional difficulty?

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Sat Nov 28, 2009 at 07:15:05 AM PST

  •  "So, you may ask, why is all this so significant? (1+ / 0-)
    Recommended by:

    It is significant because if Judge Kosinski - known to all of us on the Ninth Circuit as a conservative's conservative (at times the man can be worse than Scalia, except that he has integrity to a fault, which is why occasionally you will find him on the right side of an issue) - can see the problem with denying a legal spouse health care benefits under existing federal law merely because of DOMA (notice that he avoided, as was appropriate, the larger Constitutional question), then anyone can.

    If you don't stand for something, you will go for anything. Visit Maat's Feather

    by shanikka on Sat Nov 28, 2009 at 09:47:31 AM PST

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