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05/16/2012

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David Arneke

Your source, the New York Post, certainly does seem confused, but I doubt that many of Obama's supporters are "scratching their heads" along with them. Until DOMA, marriage had always been addressed at the state level. Obama says that's fine with him -- a pretty straightforward position (and a rather conservative one, too). Gay marriage is a complex issue, and Obama's position recognizes that complexity. It forgoes simplistic sound bites and thus may well appear incoherent to the New York Post, in those fleeting moments when it manages to tear its attention away from Jennifer Lopez's plunging neckline. For a thoughtful analysis, see http://www.scotusblog.com/2012/05/obama-on-gay-marriage-the-fine-print/#.T7MFEX7kpFQ.email.

Spag

But Obama claims that DOMA is unconstitutional. To my knowledge, there has been no claim made by the Justice Department on 10th Amendment grounds.

Obama really can't have it both ways by arguing that "states should decide" while also arguing that DOMA violates equal protection. If the "states should decide" then there is no federal Constitutional right for DOMA to violate.

If his argument is over the 10th Amendment, then he should say so and also explain his "equal protection" argument. His Justice Department claimed that the "President" believes that DOMA violates equal protection because sexual orientation should be considered a suspect classification subjected to strict scrutiny and he believes DOMA cannot survive such a review. Plain meaning: Obama believes that there is a Constitutional right involved. That cannot be reconciled with "but the states should decide". Any first year law student would know this.

Further, a 10th Amendment argument makes no sense because DOMA does not change any state laws regarding marriage in any way. It simply states that no state is required to recognize same-sex marriages from another state and provides that the federal government is not required to recognize same-sex marriages.

The more he tries to split hairs, the more confused and ignorant of Constitutional law he appears.

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