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October 19, 2012 12:55 PM Another Court of Appeals Strikes Down DOMA

By Mark Kleiman

The Second Circuit joints the First, and finds that discrimination by sexual orientation calls for heightened scrutiny. Good.

But of course this is going up to the Supreme Court. When it gets there, will the Solicitor General, on behalf of the United States of America, defend it? The voters get to make that decision November 6.

If on occasion I get just a mite testy with the people who insist that it doesn’t matter who wins, or that the choice that day is between evils, this is one of many reasons why. Yes, if I were a nicer person I’d be more polite about it, but not everyone has Harold’s saintly disposition.

Update Commenter Ken Rhoads writes:

I’m puzzled by the mention of the Solicitor General, defense of the DOMA, and the upcoming election, all together in that short paragraph. How are they related? Who defended the DOMA, on behalf of the government, in the two referenced Court of Appeals cases? Isn’t it the job of an attorney to represent his client, irrespective of his personal distaste?

More than a year ago, President Obama and Attorney General Holder decided that the law could not conscionably be defended (legal argument here).

Fox News and various Republican politicians accused Obama of tyranny and called for his impeachment.

But in fact his actions were not only clearly lawful but had plenty of precedent.

With DoJ off the case, the Republicans in Congress decided to spend $1.5 million of themoneey we keep being reminded we “borrow from China” to hire private counsel to defend the sacred right of bigots to enact their prejudices into law. They ought to be made to pay a political price for that decision.

[Cross-posted at The Reality=based Community]

Mark Kleiman is a professor of public policy at the University of California Los Angeles.
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