White House decision won't affect Prop. 8 fight 

The Obama administration’s unusual decision to stop defending the Defense of Marriage Act was met with cheers from San Francisco leaders Wednesday and jeers from Proposition 8 supporters. And there was a request to allow same-sex marriage in California again.

Typically, the U.S. attorney general defends all laws passed by Congress, regardless of whether the administration agrees with the law or not. However, in an unusual move, Attorney General Eric Holder wrote a letter to House Speaker John Boehner stating that “after careful consideration” the president had decided the law was unconstitutional to the point of being indefensible in court. The 1996 act prohibits the federal government from recognizing same-sex marriages.

Congress now has the option of hiring its own attorneys to defend the law, or nongovernmental interveners might be able to step in.

In the hours after the decision became public, it elicited high praise from local leaders at all levels.

“Great news! A huge step towards marriage equality,” tweeted Lt. Gov. Gavin Newsom, a former San Francisco mayor.

Within hours, the couples who are challenging Prop. 8, which outlawed same-sex marriage in California in 2008, filed a brief with the 9th U.S. Circuit Court of Appeals arguing the court should allow the marriages to go forward while they continue to consider the case. They cited the new federal position on the marriage act as one reason the stay should be lifted, along with the length of time it will likely take for the Prop. 8 case to come to a conclusion.

But not everyone was thrilled with the decision, or it being used as a reason to lift the stay.

In an e-mailed statement, Andy Pugno, an attorney for Prop. 8 defenders ProtectMarriage.com, described the federal decision as a sign of “the enormous political power of gay rights advocates” and said the decision was no justification to nullify the election results.

Kevin Snider, an attorney for the pro-Prop. 8 Pacific Justice Institute, said he fully expects Congress to hire its own attorney to defend the law. He said the attorney general overstepped his bounds when he decided not to defend the law.

“All of us who are lawyers from time to time have to take cases that we don’t have a heartfelt affinity for, and that’s just too bad — that’s how the system works,” Snider said. “You represent in a zealous way your client, and the United States is the client of the Department of Justice.”

But David Levine, a congressional law professor for UC Hastings College of the Law, said while Holder’s decision is unusual, it is not unprecedented.

Typically, the attorney general has an obligation to “bend over backwards” for any case. In this instance, however, the administration thought there was no longer a case to be made for the act, a decision that is “well within their authority,” Levine said.

Whether that has any bearing on the Prop. 8 case is yet to be determined, but Levine agreed the argument was a stretch, since marriage act cases — which mostly deals with whether the federal government must respect the rights of states that have legalized same-sex marriage — are quite separate from the Prop. 8 trial, which pertains to whether voters can legally outlaw same-sex marriage. He said it is unlikely the 9th Circuit will lift the stay since it would cause complications if Prop. 8 is later upheld.

“And I think the 9th Circuit Court is extremely unlikely to open that can of worms right now,” Levine said.


What is the federal Defense of Marriage Act?

  • The act, passed by Congress and signed by President Bill Clinton in 1996, defines marriage as a legal union between one man and one woman for the purposes of all federal laws, and provides that states need not recognize same-sex marriages conducted in other states.

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