Posts Tagged ‘ Newt Gingrich ’

DOMA: Crucial difference between ‘defense’ and ‘enforcement’

A statement from Speaker of the House John Boehner today highlights a troubling lack of understanding of the Dept. of Justice’s decision not to defend DOMA in the courts:

The constitutionality of this law should be determined by the courts — not by the president unilaterally — and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.

First of all, the executive branch does not have the power to declare a law unconstitutional. That is reserved for the judicial branch. By simply stating that they will not defend the constitutionality of Section 3 of DOMA before the courts, Pres. Obama and the Department of Justice have not overstepped their bounds in any way; Attorney General Holder’s letter which sparked this whole debate states very plainly that “Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.”

There is a big difference between a refusal to defend a law in the courts, which has many precedents, and a refusal to enforce a law that was duly enacted by the Congress, which is an abdication of the executive branch’s constitutional responsibility. With regards to DOMA, DOJ’s actions fall within the former category. It is also legally justified because the cases at hand (Pedersen v. OPM and Windsor v. United States) fall under the jurisdiction of the Second Circuit Court, which does not have a precedent for the level of scrutiny which should be applied to sexual orientation. As Holder’s letter states, DOJ has previously defended DOMA in jurisdictions where precedents exist that apply a simple ‘rational basis test‘ to laws pertaining to sexual orientation. However, the Obama administration believes that ‘strict scrutiny’ ought to apply to cases where sexual orientation is a material issue; it also believes that Section 3 of DOMA does not meet this standard of strict scrutiny, therefore it will not defend the issue before the Second Circuit.

However, this does not mean that Obama or Holder have ‘unilaterally’ declared DOMA unconstitutional, nor have they refused to enforce it. The ultimate question of whether strict scrutiny or rational basis review applies to cases concerning sexual orientation is still up to the courts, as well as the question of whether or not Section 3 of DOMA meets the standard which the courts decide upon. If defenders of DOMA had actually taken the time to parse Holder’s letter or use their brains for half a second, rather than spewing reactionary bullshit to score political points with values voters and separation-of-powers fearmongers, they would’ve seen that the legal fate of DOMA is still very much up in the air; and barring legislative action, it will be decided in the courts.

Of course, other thoughtful people have already said as much; I just wanted to add my voice to Incomprehensible Shouting.

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More on the “mosque”

I don’t normally like posting straight op-ed pieces, but this one from Frank Rich of the New York Times is too good not to pass along.

As alluded to in my last post, and noted by the Reverend Dr. Michael Kinnamon, spiteful anti-Islamic attitudes in the U.S. do have repercussions around the globe:

So virulent is the Islamophobic hysteria of the neocon and Fox News right — abetted by the useful idiocy of the Anti-Defamation League, Harry Reid and other cowed Democrats — that it has also rendered Gen. David Petraeus’s last-ditch counterinsurgency strategy for fighting the war inoperative. How do you win Muslim hearts and minds in Kandahar when you are calling Muslims every filthy name in the book in New York?

For those politicians (Sarah Palin, Newt Gingrich, etc …) who have been the most vocal on the subject:

The ginned-up rage over the “ground zero mosque” was not motivated by a serious desire to protect America from the real threat of terrorists lurking at home and abroad — a threat this furor has in all likelihood exacerbated — but by the potential short-term rewards of winning votes by pandering to fear during an election season.

A hefty dose of hypocrisy and a solid jab across Rupert Murdoch’s chin:

A recent Wall Street Journal editorial darkly cited unspecified “reports” that Park51 has “money coming from Saudi charities or Gulf princes that also fund Wahabi madrassas.” As Jon Stewart observed, this brand of innuendo could also be applied to News Corp., whose second largest shareholder after the Murdoch family is a member of the Saudi royal family.

A loyal soldier’s lonely battle:

Poor General Petraeus. Over the last week he has been ubiquitous in the major newspapers and on television as he pursues a publicity tour to pitch the war he’s inherited. But have you heard any buzz about what he had to say? Any debate? Any anything? No one was listening and no one cared. Everyone was too busy yelling about the mosque.

It’s poignant, really. Even as America’s most venerable soldier returned from the front to valiantly assume the role of Willy Loman, the product he was selling was being discredited and discontinued by his own self-proclaimed allies at home.

Let them build the damn community center and quit being so goddamn xenophobic. America, you’re acting like children. You’re better than this. Don’t let the fear-mongering of opportunistic charlatans cloud your judgment.