elsewhere/grim amusements: "and then a miracle occurred."

grim amusements / February 23, 2011 / administration to stop defending doma:

"And then a miracle occurred."

Obama Orders End to Defense of Gay Marriage Law - NYTimes.com

By CHARLIE SAVAGE

WASHINGTON -- President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act -- the 1996 law that bars federal recognition of same-sex marriages -- against lawsuits challenging it as unconstitutional...


In gay rights victory, Obama administration won't defend Defense of Marriage Act
By Jerry Markon, Ed O'Keefe and Sandhya Somashekhar
Washington Post Staff Writers
Wednesday, February 23, 2011; 3:16 PM

The Obama administration announced Wednesday that it will no longer defend the constitutionality of the federal government's ban on recognizing same-sex marriages, a rare legal reversal and the latest in a series of political victories for gay rights activists....

I wonder what caused the administration to make this sea change. According to the article, it's the fact that the latest DOMA challenge was filed in New York, and that circuit has no case law stating what level of review to use; this automatically triggers heightened scrutiny, which presumes the law unconstitutional until determined otherwise. I'm not sure that I honestly believe that; on the other hand, it could well be that the administration was just waiting for an excuse to abandon a position that was doing it real damage, not only among the LGBT peoples that had supported them in the last campaign, but with liberals of all stripes. This could have provided them with a legal excuse. After all, if they genuinely believed that legitimate acts of Congress that were constitutional, if utterly revolting, should be defended, then the logical thing to do is not to abandon the defense, but to say to the Second Circuit, "We hate this law, but we think it should be defended, and we think you should use a rational basis test for this and here's why." (That said ... seriously, the Ninth Circuit -- the one with California, yes -- uses "rational basis" for this type of case? The crunchy-granola ultra liberal [for the US court system] Ninth Circuit, which gets reversed with wild abandon, glee and possibly malice aforethought by the Supreme Court at almost every chance it gets? Huh. Who knew?)

Congress will have its own lawyer defend its own law, of course....