What the to make of the DOMA announcement

Salon has a wonderfully snarky post (emphasis below added by me):

That would be a mistake. True, the latest Pew poll shows that 48 percent of Americans oppose same sex marriage, while only 42 percent favor it. Defending the exclusionary law in court, however, is something very different from braying about it on talk radio.

By all conventional analysis, this decision by the Obama administration represents a risky and courageous act. Although the numbers have been steadily ticking upward, a majority of Americans have never polled in favor of same sex marriage. And according to Pew, nearly 70 percent of white Republicans — which is to say, almost all Republicans — oppose it. Thus, the Republicans who run Congress may now be tempted to follow the administration’s subtle suggestion in its Wednesday announcement that Congress should act to defend DOMA in court itself if it disagrees with this move.


In the end, the opponents of same sex marriage were reduced to a perfectly circular argument that would not survive a freshman philosophy class, much less law school. They asserted that the meaning of marriage was a union between opposite sexes, then concluded that allowing any other union would destroy the meaning of marriage as they had just defined it. They were forced to employ such twisted logic because there is no empirical evidence to support the exclusion of gays from marriage; the prohibition is the last vestige of the religious belief that homosexuality is sinful, a rare application of the language of the Old Testament to otherwise victimless behavior in a secular society. (One of the hardest things about talking to God is finding an expert to give a proper deposition.)

Also, I didn’t know that this website still existed, but David Link has a good analysis of what the recent DOMA news mean:

I think the administration is trying to get the first rulings on DOMA focused on (a) Section 3 and (b) how it applies to states that have already adopted full marriage rights.  Section 3 just applies to the federal government, and says it can only recognize opposite sex marriages.  Courts generally shouldn’t reach out for issues — and particularly constitutional issues — that go further than are required to actually decide the particular case before them.  So a court, and particularly the Supreme Court, could heed the government’s lead, and decide only those two issues — Is Section 3 constitutional with respect to the federal government as it applies to a couple who are legally married under a state’s law?

That would leave other issues for another day — civil unions and domestic partnerships, Section 2 (which allows states the freedom to ignore same-sex marriages from other states), etc.

And a decision along those lines from the Supreme Court would be the best win of all, I think.  Moving marriage squarely into the equality column is a solid victory.  And if the Supreme Court were to rule that sexual orientation is entitled to heightened (but not strict) scrutiny, that resolves one of the foundational issues the lower courts has been struggling with — though it’s also possible the court could adopt rational basis and still rule that federal treatment of two marriages, one straight, one gay, is not equal treatment under the law.  Or Justice Anthony Kennedy could move a bit further on his liberty analysis from Lawrence v. Texas, a different kind of analysis entirely.

And here’s where I think he gets it wrong:

The most amazing thing about this decision for me, though, is still the political aspects of it.  Obama has made the political decision that the split in the electorate that worked against Clinton, Gore and Kerry has now been edged more solidly into the GOP side.  In other words, the toxic effects of the anti-gay marriage side have migrated away from the Dems and more generally the independents, and are most potent among the Republicans now.

That’s why the letter is addressed solely to John Boehner.  The Administration has taken an unambiguous stand in favor of gay equality on marriage.  The ball is now in Boehner’s court, and his party’s

Yeah, no. A “unambiguous stand in favor of gay equality on marriage” would be to stop being wishy-washy about his personal views. He just did what he – as a constitutional lawyer, and as someone who has sworn to uphold the constitution – knows is the constitutional thing to do. But really, there’s nothing to “grapple” with, Mr. President.