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Little-Acorn
03-27-2013, 06:30 PM
Interesting.

Some seem to be saying that the Obama administration will refuse to defend the Defense of Marriage Act (DOMA) in court... and if they do, the court might strike it down by default. Others say that's not so.

Hmmm... if it DOES turn out to be so, then what might happen if/when a Republican President is elected, and another one of the many lawsuits against Obamacare comes to the Supreme Court? Might the Republican President simply order the DOJ not to defend Obamacare? And if DOMA gets struck down, wouldn't Obamacare get struck down as quickly?

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http://www.breitbart.com/Big-Government/2013/03/27/Justices-Suggest-Court-May-Throw-Out-DOMA-Cases-Leave-DOMA-on-the-Books

SCOTUS May Throw Out DOMA Cases Due to DOJ Refusal to Defend

by Ken Klukowski
27 Mar 2013, 12:32 PM PDT

The Supreme Court’s justices spent a full hour in today’s DOMA case, U.S. v. Windsor, debating whether the case should be in court at all.

In each DOMA lawsuit—including Windsor—the Obama Department of Justice (DOJ) has a responsibility to defend DOMA against a constitutional challenge. But President Obama declared that he believes DOMA is unconstitutional and ordered DOJ not to defend it.

The justices discussed whether this means no federal court has jurisdiction to decide the lawsuit. Article III of the Constitution only gives federal courts jurisdiction to decide a “case or controversy.” As the Supreme Court has repeatedly held, an essential element of this is that the lawsuit must be adversarial, meaning both parties try to win the case by making a good-faith argument to persuade the court to side with them.

When the plaintiffs sued to get DOMA struck down, DOJ made it clear they wanted the plaintiffs to succeed.

DOMA is defended by Paul Clement and lawyers hired by the U.S. House, but they are not the defendants in this case. The Court must decide if the Constitution allows anyone to step into the shoes of the actual defendants.

As Justice Antonin Scalia noted today, when a defendant agrees with a plaintiff, typically a federal court will only enter a consent judgment, making it official that the parties agree to something and will be bound to continue abiding by that agreement. The Court does not have the power to then consider striking down a law—any law.

If that happens here, all the current DOMA lawsuits would be dismissed, and DOMA would remain on the books until Congress repeals it or a new administration tries to defend it in court.

gabosaurus
03-27-2013, 07:12 PM
That is a really interesting point. I am wondering if there is a precedent for this. If not, then the next GOP president could, if he chose to, choose not to defend Obamacare.

Robert A Whit
03-27-2013, 09:05 PM
That is a really interesting point. I am wondering if there is a precedent for this. If not, then the next GOP president could, if he chose to, choose not to defend Obamacare.

When or if the Feds are forced to get rid of DOMA, they will also be forced by law to eliminate any favoritism over marriage. They in essence will be washing their hands of the act of marriage. A lot of married people are in dire danger of losing things like tax benefits merely because they got married. They will not have deductions for a spouse nor a child. Why? It takes marriage to have a spouse and I don't think marriage qualifies for tax benefits of any type if Marriage is out of the hands of the Feds.

logroller
03-27-2013, 11:11 PM
When or if the Feds are forced to get rid of DOMA, they will also be forced by law to eliminate any favoritism over marriage. They in essence will be washing their hands of the act of marriage. A lot of married people are in dire danger of losing things like tax benefits merely because they got married. They will not have deductions for a spouse nor a child. Why? It takes marriage to have a spouse and I don't think marriage qualifies for tax benefits of any type if Marriage is out of the hands of the Feds.
Striking down a restriction upon marriage does not equal striking down marriage.

But in regard to the OP, I believe there have been cases ruled upon by the Court which lacked the presence of adversarial parties. Iirc, it was the sawed-off shotgun case: Miller v. US. Though the present and prevailing party was the government, it shows that a "case or controversy" has been ruled upon by the Supreme Court without the presence of adversarial parties-- so it's not unprecedented. However, having the Court's ruling begin "In the absence of any evidence (to the contrary)..." doesn't bode well for absent party's interests.

gabosaurus
03-27-2013, 11:34 PM
Striking down a restriction upon marriage does not equal striking down marriage.


This is EXACTLY the case. Giving gays and lesbians to right to legally marry will not have any impact on heterosexual marriage. It merely extends the legal and financial benefits of marriage to a different group of people.

I have heard advocates of the DOMA who feel they will be personally hurt if it is repealed. I find this to be ludicrous. Allowing homosexuals to marry will not cost you money. It won't cause an outbreak of crime.
The only objections I have heard are on moral grounds. Morality does not hold up in a court of law.

I would like to know how anyone here would be physically or financially impacted by the repeal of the DOMA. Moral objections do not count.

Robert A Whit
03-28-2013, 04:58 PM
This is EXACTLY the case. Giving gays and lesbians to right to legally marry will not have any impact on heterosexual marriage. It merely extends the legal and financial benefits of marriage to a different group of people.

I have heard advocates of the DOMA who feel they will be personally hurt if it is repealed. I find this to be ludicrous. Allowing homosexuals to marry will not cost you money. It won't cause an outbreak of crime.
The only objections I have heard are on moral grounds. Morality does not hold up in a court of law.

I would like to know how anyone here would be physically or financially impacted by the repeal of the DOMA. Moral objections do not count.

I believe it will remove those benefits from you and any other married person. Such as deductions for children and each party of the marriage.

Here is why. The constitution declares all of us are entitled to the same rights. This includes matters of taxation. It will provide the tools to remove married deductions and of course increase your tax burden.

The court is not discussing morals. I believe some lawyer did mention polygamy though.