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February 24, 2011
Obama administration won't defend DOMA in the courts
Senator Scott Brown stated the obvious reaction to Obama's announcement that the 1996 Defense of Marriage Act (DOMA) is unconstitutional: "We can't have presidents deciding what laws are constitutional and what laws are not. That is a function of the judicial branch, not the executive.''
It is also within the power of the legislative branch to repeal or amend its own act. The Obama Administration however has never been overly concerned with details like whether its actions are constitutional. Their plan of action according to the Boston Globe is that Attorney General Eric Holder will simply "stop opposing legal challenges, increasing the odds that court decisions striking down the law - including one in Massachusetts - will stand."
Massachusetts Attorney General Martha Coakley explained that "the administration will drop an appeal of that ruling [and] if Congress decides not to defend the law, Tauro's decision against the Defense of Marriage Act would be the final decision."
The parallels with another Congressional Act are striking: a federal judge has also declared Obamacare unconstitutional, and the Obama Administration has not bothered to appeal the ruling. The expected outcomes in the two situations however are opposite. In the case of Obamacare, the Administration pretends that by doing nothing, Obamacare will stand as law of the land. In the case of DOMA, it believes that doing nothing will overturn an existing law. It must be nice to make up your own rules as you go along.