This is sort of insane, but it exemplifies the point that legal scholars have been making:  DOMA is not only flatly unconstitutional, but it’s just not sensible law:

In a case causing rising controversy in the US, a judge has told a Texan man he cannot leave his children in the care of the man he married.

Inter-state tension continues as the marriage between William Flowers and Jim Evans fails to be properly recognised in the second-largest US state.

Flowers had been married to a woman previously and fathered three children with her before they divorced in 2004. At the time, it was agreed she would keep custody of the children.

Over six years on, in early 2011, Flowers married Jim Evans in Connecticut, and began proceedings to claim custody.

Evans didn’t get custody, but that’s not the problem. The judge in the case has ruled that Evans can’t leave the children with anyone “not related by blood or adoption,” which specifically excludes his husband.

You see, this is the problem with wingnut ideas of “federalism.” Maybe back in the day, it was tenable to have states set their own marriage laws — this is still the position of even gay wingnuts. But now people move, they migrate, they travel, and it’s simply unworkable for marriage laws not to apply nationwide. Perhaps if DOMA were gone and Full Faith and Credit were in place for same-sex couples, it would be a better situation, as confederate states and unfortunate annexations like Texas would have to either like it or lump it when it came to recognizing other states’ marriage contracts. Of course, all this will be resolved one day when the Supreme Court steps in and forces those states to be seated at the grown-up table on the marriage issue, but until then…

File under “dog bites man” or “wingnut flings poo at protective glass.” Here’s Herman Cain explaining why the Obama administration’s decision to stop defending DOMA is, wait for it, an impeachable offense:

“That’s a great question and it is a great — it would be a great thing to do but because the Senate is controlled by Democrats we would never be able to get the Senate first to take up that action, because they simply don’t care what the American public thinks. They would protect him and they wouldn’t even bring it up,” Cain said, citing the administration’s position on the Defense of Marriage Act as an impeachable offense.

More from his answer: “So the main stumbling block in terms of getting him impeached on a whole list of things such as trying to pass a health care mandate which is unconstitutional, ordering the Department of Justice to not enforce the Defense of Marriage Act — that’s an impeachable offense right there. The president is supposed to uphold the laws of this nation … and to tell the Department of Justice not to uphold the Defense of Marriage Act is a breach of his oath. … There are a number of things where a case could be made in order to impeach him, but because Republicans do not control the United States Senate, they would never allow it to get off the ground.”

Says the man who spent his life being like tenth place at pizza delivery. Or whatever he did.

Please, attempt to argue with Barack Obama about The Constitution, Herman.  Seriously.

Oh wait, you can’t, because your chances of becoming the Republican nominee are somewhere between “slim” and “lol.”

[h/t Andrew Belonsky @ Towleroad]

In the wake of the Obama administration’s announcement that it will no longer defend Section 3 of DOMA in court, wingnut reactions have been humorous [find some fun ones here], but one of the most significant things about it is, and what really makes the law unconstitutional, is that it takes away the states’ powers to define marriage as they see fit.  Now, granted, we on the liberal side of the spectrum believe that something as essential as marriage equality should be a federal issue, but as it is, states define marriage and the government recognizes them.  So this is one of those rare occasions I’ll link to a piece at Reason because I actually find it interesting:

President Barack Obama has been denounced by Republicans for asserting federal power at the expense of state sovereignty. But last week, he was denounced by Republicans for … not asserting federal power at the expense of state sovereignty.

It happened after the Justice Department announced it would not litigate to uphold the Defense of Marriage Act (DOMA). The president thinks one section of the law is unconstitutional—a section that prohibits the federal government from recognizing same-sex marriages.

[...]

If DOMA were to be struck down, the federal government would no longer insist that some marriages transacted under state laws are valid and some are not. It would tell states: You decide who can get married, and we’ll abide by your judgment.

You want to let gays walk down the aisle? Knock yourself out. You want to deny them the joys of matrimony? Be our guest.

Such deference has always been the norm. There’s a range of matrimonial policies between Hartford and Honolulu. Some states allow 14-year-olds to wed with parental and judicial consent, and others don’t allow marriage until age 17 no matter what. Some states let first cousins get married, and some don’t. Some states used to forbid a black person from marrying a white person.

The federal government has never gotten mixed up in deciding which states are right and which are wrong. It has always had a simple rule: Show us the marriage certificate.

Until same-sex unions came along, that is.

I find this amusing because fundamentalist wingnuts are so particularly fond of drooling over their pocket Constitutions, which they see as more of an accessory than an educational resource, but they truly have no idea what’s in it.  Meanwhile, they’ve been allied with other sorts of Republicans, specifically the kind that writes for Reason, and all of the social conservatives’ supposed love and respect for the US Constitution is being exposed as little more than a mantra, intended to make them feel like the Real Murkins.

I disagree with the writer’s later contention that states’ rights should still come into play, giving, for instance, Texas the right to refuse to acknowledge a same-sex marriage in New Hampshire, simply because people are so much more mobile these days, rendering such laws impractical.  Under such a scenario, one assumes, a couple who married in New Hampshire, and who was afforded all the rights, state and federal, thereof, and then moved to Texas, would lose all of their rights upon that move?  Fortunately [unfortunately, for the Reason writer], this is actually not how Full Faith & Credit works.  Under that clause, states recognize each others’ contracts.  For instance, the writer brings up the example of differing state laws as to age of marital consent:

There’s a range of matrimonial policies between Hartford and Honolulu. Some states allow 14-year-olds to wed with parental and judicial consent, and others don’t allow marriage until age 17 no matter what. Some states let first cousins get married, and some don’t.

What he does not mention here [because it would win the legal argument for OUR side] is that if a young couple marries in a state with lower consent laws, and then moves to a state where the age requirements are higher, that state still recognizes the original state’s contract.

That is why DOMA flies in the face of Full Faith & Credit on two fronts, and why Barack Obama, as a constitutional law professor, and his Justice Department rightly recognize the law as flatly unconstitutional.

Still, it’s entertaining to watch libertarians and social conservatives fight over this.

WOW.

Chris Geidner:

The Department of Justice has made a decision that heightened scrutiny applies to sexual orientation classifications such as that involved in the Defense of Marriage Act. In a letter sent to Speaker John Boehner, Attorney General Eric Holder details the decision.

Holder says that the Department will no longer defend Section 3 of DOMA, which defines “marriage” and “spouse” as referring only to opposite-sex marriages. The letter is required by 28 U.S.C. 530(D), which states that such a letter is required when DOJ decides not to defend a federal law.

And here’s the statement from the Department of Justice, via Pam. Pay close attention to paragraph four, because that is the really good part:

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Wednesday, February 23, 2011
Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ‘ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. 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. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

It’s about time, but this is huge progress any way you look at it.

Behold, the limited mental worldview of The Constitutional Originalist. Joe Jervis:

Speaking on Friday at the University of Richmond, Supreme Court Justice Antonin Scalia denounced the concept of a “living Constitution” and said the 14th Amendment was not written with the intent of granting equal protection to ALL Americans. Just the heterosexual ones.

“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word – liberty – nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.” “The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.

Joe points out that Scalia also believes women’s rights fall under the same category. Basically, he’s a misogynistic, homophobic pig. Excuse me, YOUR HONOR is a misogynistic, homophobic pig.

Oh, my lord.

WILMINGTON, Del. — Republican Senate nominee Christine O’Donnell of Delaware on Tuesday questioned whether the U.S. Constitution calls for a separation of church and state, appearing to disagree or not know that the First Amendment bars the government from establishing religion.

The exchange came in a debate before an audience of legal scholars and law students at Widener University Law School, as O’Donnell criticized Democratic nominee Chris Coons’ position that teaching creationism in public school would violate the First Amendment by promoting religious doctrine.

Coons said private and parochial schools are free to teach creationism but that “religious doctrine doesn’t belong in our public schools.”

“Where in the Constitution is the separation of church and state?” O’Donnell asked him.

When Coons responded that the First Amendment bars Congress from making laws respecting the establishment of religion, O’Donnell asked: “You’re telling me that’s in the First Amendment?”

I am speechless like Watertiger, who posted this before me.  Like, are we all clear on the fact that when we elect people, we’re actually giving them jobs that are sort of dependent on their understanding of basic civics?

The Family Research Council more or less explicitly contends that only conservative Christians and conservative Jews are entitled to the First Amendment guarantee of religious freedom.

People for the American Way’s Right Wing Watch observes that FRC’s recent statements — including one on CNN’s Belief Blog — limits the definition of religious believer to “Evangelicals, Catholics, Lutherans, Orthodox Jews.” FRC excludes atheists, Buddhists, liberal Jews and Christians, Muslims, and every other religious affiliation from its concerns about supposed threats to religious freedom.

The Family Research Council today criticized a joint New York Times op-ed by the antigay advocate David Blankenhorn and gay libertarian Jonathan Rauch, in which both authors recommend a compromise federal civil-unions law that would preserve robust rights for religious organizations and individuals to deny recognition of such unions.

David Link of the libertarian-leaning Independent Gay Forum points out:

The compromise tests the veracity of the claim that religious believers worry civil recognition of same-sex relationships will invade their belief system through the enforcement of civil rights laws which require gays to be treated equally. The right has been able to scare up a few anecdotes about this misuse of civil rights laws: a wedding photographer forced to photograph a lesbian wedding; a same-sex couple who wanted to take advantage of a church-owned gazebo, which the church offered for use to the public; and churned them into a froth of paranoia about governmental intrusion into religion.

I’m with Jon in offering this proposal up publicly. I am happy to let the right know that we are dedicated to stopping this cascade of anecdotes. If they want additional assurance that the first amendment’ separation of church and state means what it says, I will be on the front lines to add a statutory “and we really mean it” clause.

But I don’t think anyone will take us up on this offer, since I don’t think this is really their worry. It is not the first amendment they are concerned with, it is the fourteenth. It is equality that is the problem for them. Any government recognition at all of same-sex couples is more equality than they can bear.

I think Link is correct: FRC has effectively admitted that it respects neither the First Amendment guarantees of free speech and freedom of religion, nor the Fourteenth Amendment guarantee that all Americans shall receive equal protection under the law.

CNN remembers:

In its May 15 ruling legalizing gay marriage in California, the [California Supreme Court] justices seemed to signal that a ballot initiative like Proposition 8 might not be enough to change the underlying constitutional issues of the case in the court’s eyes.

The ruling said the right to marry is among a set of basic human rights “so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process.”

Enemies of individual freedom and religious liberty — including Mormon, Catholic, and Protestant religious-rightists — chose to ignore the human rights of fellow Californians. Through a campaign of outright lies and unethical activities, religious-right groups conned California voters into approving — by a narrow margin — Proposition 8, which by a simple majority vote nullified human rights and family values of an entire demographic minority of Californians.

According to the San Francisco Chronicle, defenders of the freedom to marry contend that Proposition 8 used a ballot-initiative process which is legally restricted to minor changes to the state constitution. According to California law, changes of Proposition 8′s magnitude are supposed to be made only through a careful and deliberative legislative process.

Prop 8 replaced the freedom to marry with a sectarian religious ban that discriminated against the civil marriage and relationship rights of persons who choose not to adhere to the religious biases of one powerful voter bloc.

Today, according to CNN, the high court agreed to hear challenges to the constitutionality of Proposition 8. The case will not be heard before May 2009; until then, antifamily religious-rightists continue their efforts to nullify the pre-existing marriages of gay and lesbian couples.

Hat tip: All Facts and Opinion