Recently, the Honorable Monroe G. McKay, Senior Judge on the United States Tenth Circuit Court of Appeals, addressed a group of young lawyers at the Utah State Bar’s annual Law Day luncheon on the theme of “The Legacy of John Adams, from Boston to Guantanamo”. Judge McKay recited a number of instances throughout history where lawyers have taken on noble yet unpopular causes. He reminded lawyers that there will always be opportunities to do the right thing. I found Judge McKay’s remarks especially poignant in light of the recent failure of the Atlanta law firm of King & Spalding to honor its commitment to defend the Defense of Marriage Act (DOMA). [Read more...]
Is a case in California setting up DOMA for overturn?
A federal judge in California has ruled that a federal appeals judge has no power to order the U.S. government to provide health benefits to the same-sex spouse of a court employee, but went on to invite a constitutional challenge to the law that mandates a denial of such benefits — the federal Defense of Marriage Act. The judge also indicated that the challenge probably would succeed.
In other words, the appellant, a court employee seeking benefits for her partner, has the wrong procedural posture. She gets until April 15 to file an amended complaint for review of the constitutional grounds of the action preventing the benefits.
With Lambda Legal arguing the case on her behalf and praising the judges dicta that she has a “clear right to relief,” I have no doubt that the case will be amended and refiled.
Stay tuned and remember: if you can’t win at the voting booth, you might be able to win in court, instead.
- U.S. resists gay DOMA claim (scotusblog.com)
- U.S. says DOMA ban invalid (scotusblog.com)
- -Democrats in Congress Push Bill to Repeal DOMA (answersforthefaith.com)
- Possible Demise of DOMA (lawprofessors.typepad.com)
Precedent for Presidential Refusal to Defend Statutes the Administration Believes to be Unconstitutional
Initially I questioned the Obama Administration’s refusal to defend DOMA. On reflection, however, there may be precedent for their actions. Ilya Somin points out several precedents in both Republican and Democratic administrations that support the premise that the President may be justified in not supporting legislation he deems unconstitutional.
During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7–2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5–4 vote.
Check out his full comments on the Volokh Conspiracy. And the last word?
The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.
- Obama Administration Refuses To Defend The Defense of Marriage Act (DOMA) (jonathanturley.org)
- More on Obama, Gay Marriage, and Executive Power (reason.com)
- Administration Refuses to Defend Anti-Gay Marriage Law – CBS News (news.google.com)
- DOJ Halts Defending DOMA (lezgetreal.com)
Yesterday, Warren Jeffs‘ conviction was overturned and the Utah Supreme Court ordered a retrial, and today the world is all a-twitter with the case. It turns out that polygamy is just as interesting to news readers today as it was in the 1890s.
- Texas and federal prosecutors are waiting their turns to get their hands on Jeffs. Even if he survives yet another trial in Utah, Jeffs has a long way to go before he’s in the clear. (Washington Post)
- Time points out, as did the Utah Supreme Court, that the actual rapist–er, accused rapist–in the Jeffs case, Mr. Allen Steed, hasn’t even gone to trial, yet. (Time)
- Up north, as in the Great White North, Canada is considering whether polygamy is constitutional. And an anthropologist at Salon argues that it is not good for society, because it results in objectification of women–as if Hollywood didn’t do enough of that, already. (Salon)
- Lest it be forgotten, the FLDS (or Fundamental Latter-day Saints, not to be confused with the Mormons) have a perspective, too. (FLDS Legal Perspective)
…and that’s just a few perspectives, today. If that’s not enough on marriage, there’s always the Defense of Marriage Act for you to think about. (Constitutional or unconstitutional? Discuss.) (Townhall.com)
(Oh, and don’t miss all these other stories on the case here below)
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- Conviction Overturned for Polygamist FLDS Leader Warren Jeffs (beliefnet.com)
- Victim in Jeffs case: ‘This is not the end’ (cnn.com)
- Utah court orders retrial of sect leader Warren Jeffs (guardian.co.uk)
- Court Tosses Conviction of Polygamist Leader (abcnews.go.com)
- Utah court orders new trial for polygamist leader (reuters.com)
- Utah Supreme Court overturns Jeffs convictions, orders new trial (cnn.com)
- Utah Supreme Court got it right in Jeffs case (beliefnet.com)
- Warren Jeffs’ Rape Convictions Overturned: New Trial Ordered (nowpublic.com)
- Warren Jeffs’ Conviction Reversed By Utah Court (brainz.org)
- Polygamist Warren Jeffs’ rape conviction overturned (lawafterthebar.wordpress.com)