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President becomes chief judge, nullifies law

Cal Thomas's picture

President Obama has said his view of same-sex “marriage” is “evolving.” Apparently he thinks that the law should be based on a kind of Darwinian jurisprudence which allows it to “evolve” and become whatever the ruling politicians at a given moment say it is (or isn’t).

How else to explain the decision by the president and his attorney general, Eric Holder, not to defend the Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996? The Senate vote was 85-14; the vote in the House was 342-67, an indication of overwhelming public support to keep marriage for opposite-sex couples.

Let’s leave aside for the moment any moral, religious, historical or cultural reasons for maintaining the legal status quo on marriage, which has precedent dating to biblical times.

The president and his attorney general have concluded that because DOMA is being challenged before the Second Circuit Court of Appeals, which they say “has no established or binding standard for how laws concerning sexual orientation should be treated” — they will circumvent or overrule judicial authority and decide the matter for themselves. This “we are the law” thinking is what we oppose in Middle East dictators.

Holder contends that because of past “discrimination” against gays, the Second Circuit Court will, or should, apply a more “rigorous standard” to such cases and when they do, DOMA will be found unconstitutional.

Doesn’t this sound strangely like Richard Nixon’s approach to the law? It was Nixon who told David Frost in 1977, “When the president does it, that means that it is not illegal.” So when the president and his attorney general refuse to defend a law they have taken an oath to uphold, isn’t that the other side of the same coin?

Imagine the reaction from the Left had George W. Bush announced his administration would no longer defend Roe v. Wade because he thought it unconstitutional and it would eventually be overturned by the Supreme Court.

Former Speaker Newt Gingrich in an interview with Newsmax.TV on Friday said he thought the Obama-Holder decision not to defend DOMA in the courts might be an impeachable offense and that the House may “zero out (defund) the office of attorney general and take other steps as necessary until the president agrees to do his job.”

He later softened his stance on the issue of impeachment, saying instead in a statement to reporters that, though impeachment is clearly not an appropriate action, “Congress has every responsibility to demand President Obama live up to his constitutional obligations.”

The president and attorney general believe there are no “reasonable” arguments in favor of retaining DOMA. Constitutional attorney John Whitehead disagrees. Whitehead tells me he thinks the Obama-Holder tactic is “an attempt to provide cover for the president’s decision to achieve a repeal of DOMA through the courts as opposed to an even-handed evaluation of the strengths of the legal arguments.”

Whitehead notes that Holder has acknowledged a binding circuit court precedent which holds that “classifications based on sexual orientation are subject to ‘rational basis’ scrutiny.” Under such scrutiny, Whitehead says, “a legislative classification based on sexual orientation would be upheld if there is any conceivable basis to support the distinction; a court is not to judge the wisdom, fairness, or logic of the legislative choice.”

Whitehead adds, “Because rational basis scrutiny is extremely deferential to the decision of the legislature, the determination that it applies to a particular classification basis is usually outcome determinative; where rational basis scrutiny applies, that equal protection challenge is almost always denied.”

That is why President Obama and Attorney General Holder are wrong to pre-judge the outcome of this case in the courts, not to mention their rejection of congressional authority. Isn’t this ultimately about the separation of powers?

[Cal Thomas is America’s most widely syndicated op-ed columnist, appearing in more than 600 national newspapers. He is the author of more than 10 books and is a FOX News political contributor since 1997. Email Cal Thomas at] ©2011 TRIBUNE MEDIA SERVICES, INC.


.......if necessary.

Slavery, women's and minority voting and property rights, occupational health, abortions by womens decisions, sales of alcohol, immanent domain, and many other things which once were abominations to conservatives have been resolved by the courts in favor of the people and for the good of the nation as a whole.

What the President or the Attorney General might say has little to do with the law. If the Supremes want to hear it, they will.

Apparently you are "pre-judging" the outcome also!

I can't imagine what kind of government we would have if people of your judgements could have everything the way you desire it to be.

Worry about yourself.

And truth!

Such people as Cal Thomas. Bill O'Reilly, Rush Limbaugh, Sean Hannity, etc., who make their money catering to ultra conservatives, are delighted when such as I say they are wrong!
Why? It makes their constituents listen to them even more!

It doesn't matter to them whether they are wrong or right, or even want things their way, they just have to be careful not to step off of the line, and to be consistently, selfishly, radical.

You know: no taxes, no poor folks help, Christian religion in politics, no woman's rights as to birthing, great big military that doesn't cost much, into every war going or we start, vast drilling of oil, smoke stacks bellowing, no health regulations for food, no regulations for anything, very, extremely low corporation taxes--preferably none on them, taxes to come from all working people--same dollars for wealthy as taxes as workers make, local sheriffs never wrong, if indicted or arrested--you are obviously guilty, no subsidized housing--just corporations and the wealthy, no job creation by the government, no Social Security, no Medicare, no Medicare surely, no Medicaid, no good health care for everyone, hiring of mercenaries to fight our wars as much as possible,(100 thousand in current wars), pay contractors to do the easy part of work for the military, and etc.

I guess we are all lucky that King Obama didn't tell his "Justice Department" to no longer defend the constitutinality of the Civil Rights Act.

Just who the hell does he think he is to decide on his own as to what is constitutionally defensible and what is not? Last time I checked, we have 3 branches of government. He doesn't get to decide which laws are defended. The law is the law.

I guess if King Obama the mighty decides that he doesn't like a particular law, that he will just no nonger defend it. So much for equal protection under the LAW.


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