As the Washington Blade reports, in Florida, GOP Attorney General Bill McCollum announced Friday that he won’t appeal a court ruling last month overturning Florida’s law banning gay people from adopting children, putting a “final end” to the 33-year old state prohibition.
Meanwhile, the military’s “don’t ask, don’t tell” ban on openly gay servicemembers is back in effect, after an appellate court granted the Obama Administration’s request for an injunction to a district court ruling that had, for several weeks, put an end to government-ordered discrimination against gay citizens. With a Republican House on the horizon and the U.S. Supreme Court’s tradition of military deference, the is a real risk that the reinstated gay ban could be with us for a long time.
Interestingly, the Blade story reports that this need not have been the case:
legal experts, including constitutional specialists with the American Civil Liberties Union and the LGBT litigation group Lambda Legal, agree that presidents generally should defend federal laws. But they say the obligation to defend a law should not apply to cases where strong evidence exists that the law is unconstitutional and a court issues a ruling overturning the law on constitutional grounds. . . .
“The question is no longer whether the Executive will defend an Act of Congress, but whether the Executive will appeal from a well-reasoned, obviously correct federal court ruling based on findings of fact that are exceedingly unlikely to be reversed,” [ACLU Executive Director Anthony Romero] said in his letter. “Given these findings and the proper legal standard of review to be applied, there is no reasonable argument for the constitutionality of the policy, and no reason for the government to appeal,” he said.
Generally, I believe that legislatively overturning anti-gay laws is preferable. But if that is not going to happen (because for the year and a half the Democrats had a filibuster-proof senate majority, they dithered), then the courts must be used to secure equality under the law. But when it comes to military discrimination, or the Defense of Marriage Act’s banning the federal government from recognizing same-sex marriages that states have sanctioned, that’s not the view of this administration.
Corvino, John
{ 11 comments… read them below or add one }
Normally I hate “activist” judged but then I wonder, where would we have been without Brown vs. the Board of Education, Loving vs. Virginia, and all those other cases that changed America for the better? Where they not activists judges as well?
I don’t think the judge did anything wrong, Don’t Ask Don’t Tell does violate the first amendment even if some other people don’t see it that way.
“Generally, I believe that legislatively overturning anti-gay laws is preferable. But if that is not going to happen . . . then the courts must be used to secure equality under the law.”
I agree, but you’re running up against your co-blogger Jonathan Rauch, who appears to believe that the gay and lesbian equality movement has to play by different rules than every other civil rights movement, and eschew any involvement with the courts.
The climate created over the last decade by the whole outrage towards judges making decisions makes it increasingly unlikely any administration will ever not appeal a verdict which has any hint of controversy. More than once people I know have told me about how it wasn’t right for “judges to make the law” over DADT. Even if Obama had somehow, for once, decided to do the right thing regarding gay rights, the GOP and a lot of people out there would have seized on the out of control judiciary, wild judicial activist out of control liberalism, and so on, and DADT would be enforced or made even worse, just as it will be now. With the Republican Party of today, which is continually rewarded by voters for not supporting gay rights, and with the always spineless Democrats, DADT has nowhere to go but up.
When a US president takes an oath of office, he swears to “preserve, protect, and defend the Constitution of the United States.”
The only logical conclusion, therefore, is that the Obama administration does not believe Don’t Ask, Don’t Tell is unconstitutional.
A judge can overrule him on this, but an attorney cannot.
As someone who does think the Don’t Ask, Don’t Tell policy remains unconstitutional, I find this thought unsettling.
I’ve been trying hard to understand and appreciate those who claim that the Courts are somehow better endowed to enact public policy than are the legislative assemblies of elected officials… in this instance, Congress. Public policy is never better served by judicial activism over legislative construct —American and English history has a thousand lessons for each one that, some would say, worked out ok.
And why those same people can argue, with a str8 face no less, that because the Sen Dems didn’t have a filibuster proof majority on the issue, they wouldn’t bring it up for consideration. And why those same people give NancyP and House Democrats a pass by supporting their claim that it has to be a Senate 1st action.
Could these supposedly pro-gay rights legislators be so scared of the adverse public response to taking a principled stand for one of the Democrat Party’s most sacred and hard working and loyal constituencies? Contrary to common liberal orthodoxy here, the civil rights movement advanced most significantly when elected legislators led on the issues, not just followed a small, elite of jurists.
Imagine how different today’s landscape would have been if something like Roe v Wade issues had been decided by legislative enactment, not judicial fiat. Cowards (like then Dem Sen Don Reigle on the abortion issue) will always be delaying the gay rights movement with “not now”, “the time isn’t right”, “get x,y,z to support it and then I can.”
And the gay leadership community will go right along supporting them… because we haven’t worked on developing an alternative option. Shame on us. We deserve what we get… lip service and demands for money, rally volunteers and a seat on the back of the bus.
And why those same people give NancyP and House Democrats a pass by supporting their claim that it has to be a Senate 1st action.
Uh, the House already passed the Defense Authorization Bill with the repeal of DADT in it back in May.
It joins some 400 bills passed by the House and blocked in the Senate by Republican senators, including a fair number of bills drafted and sponsored by the GOP.
But don’t let reality impinge on your ranting.
http://www.nytimes.com/2010/05/28/us/politics/28tell.html
The House and Democratic Party leadership had the option of passing an actual repeal of DADTDHDP, BobN. What they chose to do was pass the Murphy Amendment which begins a process which might lead to repeal one day after the Dept of Def and the various military brass certify a change in policy won’t adversely affect the military.
They didn’t, contrary to your bias, pass a bill to repeal DADT. Nice try at spin. You’re about as good at spinning the Dem line as you are being honest about this important issue.
“Imagine how different today’s landscape would have been if something like Roe v Wade issues had been decided by legislative enactment, not judicial fiat.”
I don’t think today’s landscape would be all that different. Abortion is a very polarizing issue and many of those who see abortion as murder are not upset because of a court ruling, they’re upset because unborn children are being killed.
“I don’t think today’s landscape would be all that different. Abortion is a very polarizing issue and many of those who see abortion as murder are not upset because of a court ruling, they’re upset because unborn children are being killed.”
—-It’s both, they don’t like the kids being killed and they didn’t like SCOTUS deciding what used to be a state issue.
Ideally speaking, our system of federalism is supposed to let the states create the kind of America they want. As the right-wing writer of “Patriots” pointed out, people used to say “THESE United States,” not “The United States.” Yet our federal government is much too powerful, did you know that under Bush the EPA placed a ban that will take place soon on incandescent light bulbs? Or that the Department of Transportation ordered New York and other states to replace all cap road signs, so instead of STATE ST. they’re supposed to read State St? When it comes to freedom in America, it’s being killed by a thousand cuts.
“It’s both, they don’t like the kids being killed and they didn’t like SCOTUS deciding what used to be a state issue. ”
I think the matter of a state issue is something which only offends a lot of people if they already disagree with the decision. Many people shrug off or approve of federal rulings which go along with what they want.
It joins some 400 bills passed by the House and blocked in the Senate by Republican senators, including a fair number of bills drafted and sponsored by the GOP.
But don’t let reality impinge on your ranting.
It seems rather silly to complain about the Republican Party in a time when they have the least power ever in living memory. If the Obama administration is being blocked while having a majority in both houses of Congress, including a super-majority in the Senate for much (most) of its first term, it is not fit to lead.