Maybe DoJ's opinion of DOMA's constitutionality will make a difference eventually, but for now isn't it business as usual?

Does anyone really believe Justice Sammy "The Hammer" -- or "Slow Anthony" Kennedy -- will care a whit about the administration's opinion of the constitutionality of DOMA?

"This shows just how big a sea change yesterday's Justice Department announcement was -- not only has the department itself now said that it is unwilling to continue defending a blatantly unconstitutional law, but it's going to be hard to ignore its assessment that any sort of law that discriminates based on sexual orientation must be presumed to be unconstitutional."

-- Jennifer C. Pizer, National Marriage Project
Director for Lambda Legal

by Ken

Ms. Pizer is referring to the request from a California federal district judge, Jeffrey White, for an explanation of the government's continuing opposition to the granting of same-sex spousal health benefits to a lesbian federal employee, Karen Golinski, in the wake of Attorney General Eric Holder's announcement yesterday that the Obama administration will not defend challenges to DOMA in jurisdictions where there aren't existing rulings that obligate it to apply more rigorous standards, on account of how DOMA is unconstitutional. It so happens that Ms. Pizer and her law firm, Morrison & Foerster LLP, happen to represent, and for whom she has garnered several favorable rulings from the chief judge of the Ninth Circuit Court of Appeals, Alex Kozinski.

I wasn't going to write about the Justice Dept.'s admittedly highly surprising decision, because unlike most everybody else, I don't see it as, really, such a big deal. It ought to be a big deal, I know, and I can certainly understand why a lot of people are excited, after the Obama administration showed itself previously unable or unwilling to buck the traditional stance of the government in defending any defensible laws that are subjected to court challenge. Yes, I agree it's nice, but the practical effect . . . well, I'm not at all sure about that.

To get down to specifics, where Ms. Pizer sees a "sea change," I see mostly business as usual. Attorney General Holder made it clear that, while the administration isn't going to defend DOMA as long as, in its view, the jurisdiction involved permits it not to, it will continue to enforce the law, because it is still, after all, the law. And that's not going to change anytime soon. Clearly the situation isn't going to be resolved until the Supreme Court accepts jurisdiction and upholds DOMA (nobody really believes they won't, do they?), and then it will be, well, the law, just like before.

Apparently Judge White is mystified as to how the government can continue to enforce a law it has decided is unconstitutional and at least selectively refuses to defend. I don't see any problem, and I've got a feeling the government isn't going to either. The executive branch doesn't get to decide issues of constitutionality, and therefore its opinion has no bearing on enforcement. The Justice Dept. emphatically is charged with upholding the law.

I mean, haven't we been through this with DADT? Didn't the administration make it clear that, whatever its personal opinions of the law, it wouldn't deviate from enforcement until the law was changed, and it didn't. Indeed, as far as I can tell, it still hasn't, even though the law has been changed. The changes haven't been implemented, though, and any LGB military personnel who think it's safe to come out of hiding may be in for a rude awakening.

Nor am I much impressed by those favorable rulings from the Ninth Circuit. Hasn't the Supreme Court made it painfully clear by now that it not only doesn't take the Ninth Circuit seriously, it barely even considers it a real circuit, but as something more like a mock appeals court. I think from now on we can expect a portion of each new Supreme Court term to be devoted to "correcting" the un-circuit.

I'm told that the Justice Dept.'s new position not only may now be cited by other parties litigating similar cases, and also that it may pave the way for other legal positions taken by the DoJ. Okay, I'll be interested in seeing that. Perhaps it will really have some effect. I don't really expect so, though. It's nice, though, that the DoJ is no longer providing language to be cited by Justice Alito (somehow I'm seeing this opinion falling to him) when the Court upholds DOMA. You'd like to think that some of the new language being offered by the DoJ might find its way into a Court opinion striking down DOMA, and if that happens, all well and good, but I don't see that it changes anything now.

Except, of course, that the staggeringly tin-eared administration has managed to provide a rallying point for the forces of homophobia arrayed throughout the land. With growing acceptance in the land that Americans' rights are properly determined by right-wing-slanted polls, the administration may simply have increased the wave of relief that will be felt when the Supreme Court disposes of this "equal of marital rights" foolishness.

I'd love to be wrong about that. Maybe Justice Kennedy will be impressed by the socialist Obama administration's opinion of DOMA's constitutionality. (Yeah, right.) If it happens, great; at that point we have a sea change. Until then, well, not so much.

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