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YES! I tweeted that this afternoon. I'm hoping that Ken issues a full statement in support of AG Holder's decision!

Not Larry Sabato

Sorry I missed that tweet!


It's cool bro! I'm happy our "great minds think alike." I think it was definitely appropriate given how a Fox News Contributor in discussing it called President Obama "Mubarak." Hopefully Fox Poster Boy Cooch can be asked what his thoughts on it are, especially on Fox News!

Ken Falkenstein

I'm excited that Obama has now endorsed the concept of nullification of unconstitutional laws. He has now given credibility and political cover to those states that wish to nullify ObamaCare!

Brian W. Schoeneman

It's not nullification. I'm just happy to see the executive branch recognizing - like Bush and other presidents have done with signing statements - that the right to construe the constitution isn't limited to the Supreme Court. Good for Holder.

Rtwng Extrmst

I have a question for you then... If it's completely unconstitutional to say that civil marriage must be between one man and one woman, then how can you say it's Constitutional to say marriage must be between only two people?

Eric Cantor's Lisp

brian - there's a bit of a difference b/w obama's actions here and the bush actions you compare them to: (1) 700+ signing statements, FAR FAR exceeding any other president before him; and (2) deciding congressionally enacted domestic spying laws are unconstitutional and ignoring them WITHOUT TELLING ANYONE!!!!

see the distinction man?

Brian W. Schoeneman

RE, I don't think either of those things are constitutional because there is no federal role in marriage. These are state issues that can only be handled at the state level.

Eric, its a distinction without a difference. Bottom line is that the executive owes as much of a duty to the Constitution to not enforce unconstitutional laws as the judiciary does to over turn them, and Congress does not to write them in the first place.

Steve Vaughan

Brian: Well, actually there is a difference. I agree with your point about the executive. But, he has the responsiblity to say "I'm not enforcing this law because it's unconstitutional." That allows the other branches to have their say on his actions. The executive has a duty not to enforce unconstitutional laws, but he doesn't have the final say on what's constitutional or not, the Court does.


Obama didn't say he wouldn't enforce the law-he said he would not DEFEND the law in court.

BIG difference from Bush.

James Young

Thank you, Brian, for giving us the law school student's version of Congress' power to legislate regarding the "full faith and credit" clause. However, you are plainly wrong with blanket reliance on the principle that "there is no federal role in marriage," since DOMA isn't about "marriage"; it's about what relationships other states may be forced to recognize.

As for the dig at Cuccinelli, if memory serves, he was commenting on the duties of the AG to defend state statutes against constitutional challenge. And in this case, he has dual duties, to both the Virginia AND the Federal Constitutions. That's a tougher needle to thread than the United States Attorney General, whose only duty is to the Federal Constitution and the statutes duly enacted pursuant to it.

Brian W. Schoeneman

James, You mean DOMA doesn't include a definition of marriage? That's funny, I'm pretty sure that's in there. But hey - I am just a law student for another 90 days it's questionable whether or not I know how to read.



Actually, the only part of DOMA that Obama said he would no longer defend in Court (section 3) is the part that, for federal purposes, defines marriage as between a man and a woman. He's still defending the full faith and credit part.

Eric Cantor's Lisp


I said: "brian - there's a bit of a difference b/w obama's actions here and the bush actions you compare them to: (1) 700+ signing statements, FAR FAR exceeding any other president before him; and (2) deciding congressionally enacted domestic spying laws are unconstitutional and ignoring them WITHOUT TELLING ANYONE!!!!

see the distinction man?"

You said: "Eric, its a distinction without a difference."

Actually there are huge differences.

(1) As others have pointed out, Obama is still ENFORCING the law, just not defending it in court .... which is not a bid deal b/c (a) someone else will (Congress can)and (b) DOJ efforts would be wasted (writing's on the wall, strict scrutiny for gays will be here soon)

Obama is TELLING EVERYONE what he's doing, giving Congress the opportunity to do something about it ... cf. Boosh's domestic spying program ... only a few people (cheney, yoo, etc.)got a head's up that FISA was no longer operative and that it was open season on listening in to the NYT's investigative desk's phone calls.

James Young

Sooo, Brian, your claiming that the accurate use of a word as it always has been defined is subject to challenge.

Glad to see you're dropping the pretense as a Conservative, because that demonstrates that you are an extreme legal positivist, and that is well on the road to totalitarianism.


So, when a Republican is elected president, it will be OK with you if his Justice Department does not defend laws he thinks are unconstitutional?

Mr Bubbles

this is kinda like saying you support glenn nye for senate because of your "anybody but kaine" mantra

Brian W. Schoeneman

No, James, I am saying that i like the tenth amendment and would prefer to allow the states to decide for themselves what marriage is defined as.

If you want to be a real conservative, limited government needs to mean something. And I believe it means thenfeds don't stick their noses in where it doesn't belong. And marriage is one of those places.

Not E. Blackburn Moore

The Obama Justice Department has not refused to defend DOMA in court. They have attempted to do so multiple times, but both Republican and Democratic federal judges have ruled against them. There comes a point when you recognize the futility of defending the indefensible.

There are two distinct provisions of DOMA. The first purports to grant states the right to refuse to recognize the validity of marriages legally contracted in other states. Challenges to this provision are based on the Constitution's Full Faith and Credit Clause, which requires states to recognize the legal acts and judgments of other states.

This Clause either does or does not require interstate marriage recognition. If it does, then this provision of DOMA is obviously void, since a mere statute obviously cannot prevail over the Constitution. If it does not, this provision in DOMA is redundant and meaningless. Why would anyone waste time defending a provision that is either void or, at best, meaningless?

The second provision concerns whether federal recognition of marriages validly contracted under a state's law is required by the Constitution's Equal Protection mandates. This is the provision that the Justice Department has attempted to defend in multiple cases without success. (They even lost a case before a 79-year-old Republican judge appointed by Richard Nixon!)

DOMA may have seemed necessary when it was adopted many years ago, but subsequent events have really made it obsolete. Continuing to defend this impractical and unwieldy law is a waste of time and money.

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When something need to be done do it! Do your bed, clean the table through you garbage.

IT Recruitment

He is really a good speaker and he was able to express his views clearly.

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