GAY RIGHTS Obama Advances Equality Last Wednesday, in a sharp reversal of policy, the Obama administration announced that it believes that Section 3 of the 1996 Defense of Marriage Act (DOMA) -- which prohibits the federal government from recognizing marriages of gay couples -- is unconstitutional and said that it would stop defending the law. The government will, however, still be a party "in those cases in order to allow those cases to proceed so that the courts can make the final determination about its constitutionality." In a press release announcing the change, Attorney General Eric Holder argued that laws regarding sexual orientation should be subject to a higher level of review. "[T]he 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," Holder said. "The President has also concluded that Section 3 of DOMA, as applied to legally married gay 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."
NOT DEFENDING DOMA: Back in July, a Federal District Court in Boston ruled that Section 3 of DOMA is unconstitutional because it interferes with the traditional state right to define marriage and forces the state to "violate the equal protection rights of its citizens." The decision comprises two separate challenges, one brought by the state of Massachusetts and the other by Gay and Lesbian Advocates and Defenders (GLAD) on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal benefits available to heterosexual married couples. In November 2010, plaintiffs also filed two new lawsuits challenging the constitutionality of Section 3 of DOMA "in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny." These latter suits led the government to revisit its support for the Act. Unlike previous challenges, the November lawsuits were filed in districts covered "by the appeals court in New York -- one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people." As White House Press Secretary Jay Carney explained, a court-imposed deadline by the Second Circuit "required a decision by the administration about whether or not this case should require heightened scrutiny, a heightened constitutional review." Carney added that "the Attorney General recommended that the higher level of scrutiny be applied and under that higher level of scrutiny deemed or recommended that it be viewed as unconstitutional. The President reviewed that recommendation and concurred." Carney reiterated, however, that Obama is still required to enforce the law. Pressed further on Obama's personal position on the marriages of gay couples, Carney only said, "He's grappling with the issue."
FOLLOWING THE 'ROBERTS RULE': In a separate letter to Congressional leadership, Holder pointed to the long history of past administrations choosing not to defend legislation. "[T]he Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a 'reasonable' one," Holder wrote. "[T]he Department has declined to defend a statute 'in cases in which it is manifest that the President has concluded that the statute is unconstitutional,' as is the case here." In 1996, Justice Department officials informed the Senate that the DOJ did not uphold the law "in 1946, 1963, 1979, 1980, 1983, 1988, 1990 and 1992." In 1990, as the number two man in the solicitor general's office, Chief Justice John Roberts "declined to defend federal laws which set a preference for awarding broadcast licenses to entities with a certain level of minority ownership," arguing that "the FCC's policy violated the 14th Amendment's equal-protection clause because it unfairly discriminated based on race." President George W. Bush similarly didn't defend a law prohibiting the display of marijuana policy ads in ACLU et al., v. Norman Y Mineta and President Clinton did not uphold a law "barring HIV-positive men and women from serving in the armed forces because they deemed it unconstitutional."
RIGHT WING STEPS IN: After issuing a mild condemnation of President Obama's decision last week, House Speaker John Boehner (R-OH) suggested in an interview published Monday that he or the House of Representatives may seek to defend the law in the government's stead. During an appearance on the Christian Broadcasting Network's 'The Brody File,' Boehner assured right-wing Christian listeners that Republicans will soon decide how to proceed in upholding the Act. "[I]f the President won't defend DOMA then you'll see the House of Representatives defend our actions in passing a bill that frankly passed overwhelmingly," he said. "We've been researching all the options that are available to us. We'll be talking to the members in the next few days about that and I expect we'll have a decision by the end of the week." House Majority Leader Eric Cantor (R-VA) reiterated Boehner's pledge during a Monday afternoon press conference, saying, "Again I do believe that this is a case that is distinguishable on its merits and to have the administration take the position, the president take the position, that he's not defending the law of the land, is something very troubling I think to most members of the House," Cantor said. Asked what House Republicans planned to do, he added, "I think you'll see that on Friday." The leadership's comments align Republicans with the most social conservative faction of the GOP and anti-gay groups like the Family Research Council, the National Organization for Marriage, the American Family Association. Rick Santorum, Newt Gingrich, and Rep. Steve King (R-IA) have also embraced their message and have been calling on the party to push back against the President's decision. Santorum asked Boehner to defend DOMA in court, while Gingrich and King have both proposed "cutting the funding to the Justice Department" in response to the decision. Gingrich even went so a far as to argue that Obama is violating his "Constitutional oath."
 President Obama spoke out in support of public employees' collective bargaining rights yesterday during a meeting with the National Governors Association, saying, "I don't think it does anybody any good when public employees are denigrated or vilified or their rights are infringed upon. We need to attract the best and brightest to public service. These times demand it."
As the standoff in Wisconsin continues to escalate, a New York Times/CBS poll has found a majority of Americans oppose efforts to weaken public employee unions' collective bargaining rights by a margin of 60 to 33 percent. Those surveyed also said they oppose (56 to 37 percent) cutting the pay or benefits of public employees to reduce deficits.
The nonpartisan Moody's Analytics released an economic analysis yesterday finding that GOP efforts to cut billions from the budget this year could result in the loss of as many as 700,000 jobs by the end of next year. Moody's chief economist Mark Zandi projected that the GOP proposal would cut real GDP growth by 0.5 percent in 2011 and 0.2 percent in 2012.
According to a new poll, "Americans are divided over who would be to blame for a potential government shutdown." While 46 percent said they'd blame congressional Republicans before the impending shutdown in 1995, today 36 percent say Republicans would be at fault and 35 percent would blame the Obama administration.
The U.S. "has blocked $30 billion in Libyan government assets since President Obama announced his executive order late Friday night imposing unilateral sanctions" on the Qaddafi regime. This "is the largest amount of foreign assets ever seized in an American sanctions action."
Stating that Libyan leader Muammar Qaddafi has "lost the legitimacy to govern and it is time for him to go," the U.S. is providing refugee aid teams at the Libyan border. While Qaddafi insists that "my people love me," the UN estimates that "more than 1,000 people have died in the Libyan uprising" and "almost 100,000 have fled."
President Obama announced yesterday during a meeting with the nation's governors that he is endorsing moving the state waiver for the federal health care law to 2014 . This would allow states to opt out of the federal health care mandate if they are able to put together plans that provide just as much care -- like Vermont's proposed single payer program.
The gun used in the killing of a federal agent in Mexico this month has been traced back to Texas , where three people were arrested yesterday on suspicion of arms smuggling related to the shooting. The slain ICE agent was killed while traveling in an SUV with his partner, who was also shot, to Mexico City, where they were stationed at the American Embassy.
And finally: Texas Gov. Rick Perry (R) needs a geography lesson about his own state . Speaking with reporters yesterday, Perry misidentified Ciudad Juarez as "the most dangerous city in America" -- it is actually in Mexico. "After an aide informed the governor of his mistake, Perry clarified that Juarez indeed belongs to Mexico, not Texas."
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 Q: So you would support a [government] shutdown if it comes down to it?
PAWLENTY: If it came down to it and it was between that and not getting the budget headed in the right direction, that's an option I think Republicans have to consider.
-- Former Minnesota governor Tim Pawlenty (R), 2/27/11
VERSUS
"Anyone who considers the negative impacts of a shutdown should see it as a reason to seriously get back to the negotiating table."
-- Pawlenty, 6/15/05
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