If DOMA is to be struck down, it needs to be done by the legislative branch. Only then will it be seen as legitimate. If it is struck down in the courts by some twisted reasoning (and it would have to be pretty twisted, since sexual orientation is not constitutionally protected there is no actual constitutional problem with DOMA), then it will (quite rightly) be seen by many as an overstep of the constitutional role of the courts.

What kind of marriage case would qualify as “less full throated” to you than the ones cited in the brief? Isn’t by definition a marriage going to be “egregious” in some way if it’s going to be rejected by another state? Can someone cite me a marriage case where it was rejected for recognition in another state for purely routine reasons that won’t offend anyone?

Let me be clear, I fully support gay marriage (duh) and the repeal of DoMA. But if you’re going to make an argument about conflict of laws regarding marriage, I’m hard pressed to understand what marriage rejection cases to cite that would be considered less “full throated.” Please list some citations if you have them!

As for the just-doing-his-duty crap, this is that same vestigial trope that used to come up over and over in the south vis-a-vis fighting for the Confederacy: at least they fought for what they believed in — or for that matter soldiers fighting any unjust war: just doing their duty. Bullshit. Doing one’s duty against one’s conscience or fighting for an unjust cause even if one believes in it is simply worthless worthless worthless. Wrong is wrong. He could have finessed this and he didn’t. It’s understandable he isn’t going to come out and take a stand and say “I WON’T ENFORCE THIS UNJUST LAW” though a better man would, but he could have subtly diminished this. He could have buried it. He could have had it revised. It’s obviously inflammatory with the incest bit and there’s tons of case law out there that didn’t require these comparisons. This was a egregious and unnecessary. And the sad truth is, I don’t have anybody else to vote for because this guy is the closest thing to reasonable we’ve had in years. I can’t believe he let this slip by. Really pathetic. Wow thanks Barry. Barney F. should know better too. Too much the Dem shill on this one.

But I disagree that the brief needed to make all of these arguments as part of a “zealous” defense. The most offensive just strike me as unnecessary: why make the third and fourth and fifth points when it means insulting gay people? This brief should have been shorter, narrower, and more respectful. People can understand defending the law, given the institutional obligation of the department. What pisses us off is the way the Obama Justice Department made the case.

I don’t know how you can say the brief does not compare gay marriages to incest and pedophilia. The argument is that the “public policy” exception allows states to refuse to recognize incestuous and underage marriages from other states, and, for the same reasons, states should be able to refuse to recognize gay marriages. Anti-gay policies deserve the same respect that anti-incest and anti-pedophilia policies receive under the Full Faith and Credit Clause, according to Team Obama. You’re right that argument by analogy is common in legal briefs, but the analogy is precisely what’s offensive. The DOJ is saying there’s a category of relationships (e.g. interracial marriage) that states must recognize as protected, and another category (e.g. incest, pedophilia, plenty more sickening examples) that they are free to reject. Obama says gay marriage falls in the latter category because it is more like incest and pedophilia than the protected kinds of relationships. Sure, the claim arises in a particular legal context, but it’s an undeniable comparison between incest, pedophilia and gay marriage.

So, a comparison or “likening” is being made, contrary to your assertion.

Kevin R Cariato

And if you don’t like that, I’ll be happy to tell you to calm down and explain how you should feel about it.

Look what happened with DADT. Clinton unilaterally ordered a lifting of the ban without consulting Congress, he got crushed by the firestorm, he lost his political capital, he weakly signed DADT, and then Dems lost the Congress in ’94 (due in no small part to this issue, plus healthcare) for a dozen years to the Republicans. What makes you think Obama would want to sign up for the same punishment? Whether we like it or not, that’s political reality.