SCOTUS May Throw Out DOMA Cases Due to DOJ Refusal to Defend

Ken Klukowski
Big Government
27 Mar 2013

The Supreme Court’s justices spent a full hour in today’s DOMA case, U.S. v. Windsor, debating whether the case should be in court at all.

In each DOMA lawsuit—including Windsor—the Obama Department of Justice (DOJ) has a responsibility to defend DOMA against a constitutional challenge. But President Obama declared that he believes DOMA is unconstitutional and ordered DOJ not to defend it.

The justices discussed whether this means no federal court has jurisdiction to decide the lawsuit. Article III of the Constitution only gives federal courts jurisdiction to decide a “case or controversy.” As the Supreme Court has repeatedly held, an essential element of this is that the lawsuit must be adversarial, meaning both parties try to win the case by making a good-faith argument to persuade the court to side with them.

When the plaintiffs sued to get DOMA struck down, DOJ made it clear they wanted the plaintiffs to succeed.

DOMA is defended by Paul Clement and lawyers hired by the U.S. House, but they are not the defendants in this case…

The article continues at Big Government.


Update:  Nearly a year too late: Chief justice reveals he’s fed up with Obama

After two days of tense arguments in the Supreme Court over same-sex marriage, we don’t know for certain how the justices will rule on either California’s Proposition 8 or the Defense of Marriage Act. But we did see — over and over — Chief Justice John G. Roberts’ irritation with and contempt for the Obama administration.

Roberts’ attitude was manifest on both days, and it was directed at Donald Verrilli, the solicitor general. The chief justice wasn’t complaining about Verrilli’s performance, but rather about the Obama administration policies the solicitor general was trying to defend…

…”The executive’s obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.” …


Update 2Conservative Justices Slam Obama for Not Defending DOMA

…Justice Antonin Scalia criticized Obama and Holder for letting the legal system live “in this brave new world” where the Justice Department can decide which laws it wants to defend. According to The Hill, Scalia said DOMA was not a law that the Justice Department could choose not to defend in federal courts.

“It’s only when the president thinks its unconstitutional?” Scalia asked. “Or could the attorney general, or the solicitor general, impose the same determination?”

Justice Anthony Kennedy said the Obama administration’s approach on DOMA gave him “intellectual whiplash”…


Update 3: Durbin, Clinton, Reid break vows to protect traditional marriage


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