I say yes, you say no, OR People are Strange

Bren-2007

http://www.cnn.com/2011/POLITICS/02/23/obama.gay.marriage/index.html?hpt=T2

Notself .... Phyllis Schlafly's head must be spinning! What this means that the DOJ will not challenge anyone who brings suit in a Federal court to overturn the DOMA. Once that is overturned, you will probably see more state courts ruling against statutes that define marriage as one man one woman.

Washington (CNN) -- President Barack Obama has ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which defines marriage for federal purposes as only between a man and woman, according to a statement Wednesday from Attorney General Eric Holder.

"The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," Holder said.

The key provision in the law "fails to meet that standard and is therefore unconstitutional."

BarbaraA

KK, thanks. Hope your news was good. notself, hope your furry buddy shows up tonight. Maybe he got lucky in someone's garbage can last night.

Update: Bro sprung himself from the hospital. Going to pick him up now. Not sure this is such a hot idea since he can barely pull himself up in bed.

1Athena1

Erica - fingers crossed. I know all too well the anguish you must feel. I hope he is just chasing the ladies....we had a Dalmatian would would disappear for days at a time for that reason.

Barbara - I see, a horrendous case of pneumonia. So glad that the scare is behind to and that Dave is on the mend!

I loath psychobabble and deplore online diagnosing but this Phyllis What's-her-name sounds self-loathing. One of those women who hate women. I think we all know the type. 

Off to scan some doggie pictures. It will take ages, as my technology is old and slow. 

Bren-2007

Barbara .. sounds like Bro is tired of being in the hospital.  Sure hope he's okay.

Bren

1Athena1

Bren, Your Bo looked like such a good, kind old fellow!

ananda8

BarbaraA,

Such good news about your brother.  He is going to be weak for a couple of months.  He needs to eat good quality food and get tons of rest.  If he needs to, he should apply for temporary disability if he has used up all his sick days.  The more he rests the faster he will fully recover.

Bren-2007

Thanks Athena .. he was so big that he scared people, especially when he would wuff, wuff  .. but he was the sweetest dog in the world.

Bren

Anonymous

Did someone change the constitution?

"The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," Holder said.

The key provision in the law "fails to meet that standard and is therefore unconstitutional."

Isn't interpreting the law, and determining what is and is not allowed by the constitution the job of the judicial branch of the government, not the executive branch?  Did something major change recently?

Bren-2007

Edited.

ananda8

Before the news about DOMA starts getting spun by the pundits, here is the actual letter sent to Speaker of the House by Attorney General Holder that I copied from a news article on the Huffington Post.  As usual, the bold is mine.

********************** 

DOMA

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have "demean[ed] the existence" of gays and lesbians "by making their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 578 (2003).

Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don't Ask, Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

Finally, there is a growing acknowledgment that sexual orientation "bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don't Ask, Don't Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don't Ask, Don't Tell Repeal Act of 2010 ("It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.")

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate - a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003). Others rely on claims regarding "procreational responsibility" that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

Application to Section 3 of DOMA

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." United States v. Virginia , 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.

Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or fear" are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by "the liberties of landlords or employers who have personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.").

Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

In light of the foregoing, I will instruct the Department's lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch's view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Furthermore, pursuant to the President's instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.

Sincerely yours,

Eric H. Holder, Jr.
Attorney General

********************

So the letter states

1) the Administration will continue to enforce the law passed by Congress until the Supreme Court rules. 

2) that the Administration has supported the law in those challenges where there has been precedent in Circuit Courts where the basis was the relaxed standard of "rational basis" review.

3) that the current cases are in Circuits where no such precedents have been set, therefore the administration will not defend in those Circuits because Administrations, in its review of the law, concludes the a higher standard of "heightened scrutiny" applies.

4) that if the Second Circuit decides the "rational basis" standard applies,  the Administration will defend the law based on that standard.

iodine

LOL, one the major reasons we Didn't divorce was that whomever left had to take the kids.  LOL.

Good ol' Phyllis, there she goes again,  putting her nose in where she really doesn't belong.  As with the interview on TV with the chick from "Two's Company" and Thighmaster, I am amazed that Phyllis is again given space in the 'news'.  She did her best to return women to the 1800's and here she goes again. 

We have had dogs but with our busy lives became cat people.  Mostly Siamese, but a lot of rescues.  My Chin-Chin slept in my lap each night when I was recovering from what ever surgery.  And when I was able to return to my bed, he was right there to keep me warm and provided a soft furry place for my hand when I'd awaken in pain.  Bless him.  I have not yet been able to scatter his ashes and from what you've said above, I think I'll take him with me when I go.

Alpal

I am totally opposed to age discrimination but she's almost 90 years old. Time to retire.

1Athena1

Thank you Notself. And your summation is perfect. The administration is navigating rather thin jurisprudential waters but is it a good start. It probably means the high court will eventually have to consider heightened scrutiny and DOMA sooner rather than later. This definitely gets the ball, rolling, IMO.

I would love to see how the pundits misinterpret this one! 

rosemary-b

Well with all the talk of cats and raccoons, I have to add that my cat is a Maine Coon. She is a rescue cat. The legend is that Maine Coons are a cross between raccoons and cats but since that's impossible they are probably a cross between Persians and good old short hairs.She kept brining me mice (from inside) this fall until we put mouse poison in the crawl space.

ananda8

I would like to point out one more thing.  Even if DOMA is eventually declared unconstitutional, the individual States will still have the ability to pass laws defining marriage as between one man and one woman.  Those laws have not yet been challenged as unconstitutional in States that do have such laws.

I think it will be very entertaining to see the spin that is put on all of this by TV and radio talking heads.

Wabbit

At this point the courts have already ruled it unconstitutional.  The executive branch Obama/Holder were appealing that ruling.  Not making the determination themselves ... just deciding if they wanted to challenge the existing judiciuary ruling.  They are merely dropping the appeal.

First I think it is seriously in error to assume that almost all divorce cases are initiated by women.  And of that group Mrs. Schlafly's comments might apply to a very few.  It's just a very simplistic view.   Joint custody is pretty much the standard nowdays already ... unless one parent is deemed unfit.

Love the doggie pictures and hope Erica's buddy shows up for dinner tonight.

Barbara ... hope your brother's decision works out OK for all of you.  

Edited to correct - I think I'm thinking of maybe just one court?  I remember the gay/lesbian community celebrating a court ruling.  And then being horribly disappointed when the Justice Department decided to appeal the ruling.  Now I'm confused and don't have time to research right now.    

Anonymous

rosemary - I had a Maine Coon, she lived to 18 .  They are called "Gentle Giants" and that description fit her perfectly.  They are beautiful cats.

She is the only cat I that owned me that I actually went and picked out.  All of my other feline friends have wondered in through the back door,.

BarbaraA

Thanks, all, for the well wishes for my bother. Him leaving the hospital was a dumb idea. He is so weak that when he got back to my mother's he plopped down on the floor in front of the TV (a favorite place) then could not get up later. Mom called her neighbor who pulled him into a sitting position. Sheesh. Brother#2 is coming to spend a few days tomorrow.

He basically pitched a hissy fit and demanded to leave. Wish I had known that before I went down and sprung him. Great, so now my mother has to deal with this and she is 81. Grrrrrrr. Sorry, I guess I sound uncharitable but I guess I am still beat from all the running back and forth plus working a huge deal that is due next week. So here I go working another weekend.

1Athena1

Many bad words - that is all I can say about my crappy scanner. But I digress....

Here is a picture story of two of my family home dogs, Camilla, a German Shepherd, and Athena, a golden labrador. They were sisters, both having arrived on the same day, purchased from two different breeders within hours of each other. Camilla was feisty, emotional and playful. Athena was quiet, tender and cerebral. Camilla was probably stolen by someone and we know who it was. Athena died of this dreaded disease (although the cancer location was never determined because I didn't think there was a point in doing a full autopsy).

Meet Camilla. She was ADDICTED to sticks...

 

 ...and she loved to pose....

 

This is Athena, whose beauty and eyes are not done justice to in these pictures:

 

As much as Camilla loved sticks, Athena loved to play "fetch" with tennis balls....

 

1Athena1

We tried breeding Camilla, but with no success. With Athena, the results were a surprise. We chose a beautiful male specimen, fully intending to give issue to absolute gems in the labrador world. But Athena was not one to be sucked in by expectations. She followed her heart and "married" a Doberman that had assiduously courted her, to the point of needing many a bucket of water to keep him away from his beloved's door step. Athena found a way around family restrictions, conveniently just at the time that we were "marrying" her. So when she gave birth, on a Thanksgiving day, next to a bed of roses, these little darlings popped out. There were five of 'em, but here are four:

 

I have many happy memories of serving as nursemaid, cuasi-midwife and grandmother to Athena's Pups (which we gave away to people we knew would treat them with love and care). Here is Athena bombarded by a feeding frenzy, when Camilla, always the attentive aunt, looks on:

1Athena1

Athena and Camilla enjoyed playing together and used to chase each other around in circles. In this picture, Camilla is flying through the air as my sister's former husband wields a stick. Camilla never let go of sticks, even if it meant clinging to them by the skin of her teeth. Athena, with her inimitable smile, joins in the fun....

rosemary-b

Athena

Beautiful dogs

Bren-2007

Athena .. thanks for scanning and posting the wonderful pictures.  I love the puppies!

Bren

Claire82

These are my 2 boys.

The darker one is part Maine Coon. We thought he was going to be huge, but he is only 8 pounds. His personality fits though. He loves everyone. The gray and white one is my cat. He only loves me probably because we adopted him as a baby and he was very ill. He lived in my shirt for two weeks. Griffin and Puffin

Bren-2007

Ahh ... Griffin and Puffin are so cute!  They look like such good boys!

konakat

I LOVE German Shepherds!  And Athena's surprise puppies!  Great pics!!

YramAL

Here's our grand-pup Annie: Well that didn't work-sorry. Take my word  for it, she's cute.

Mary 

 

Alpal

What marvelous dogs. And I love your narrative. Were the pups a surprise - meaning the baby daddy or had you figured it out before they arrived? I once picked out a precious pup - registered, etc. and placed a deposit. Got a call from the breeder the night before pick up that his neighbor had casually mentioned seeing the mom having a tryst with the neighborhood tramp. Of course, the registration wasn't a go and he let me have her for $25. We thought for the first few months that she really was a pure bred, but it soon became evident that wasn't to be. She was a wonderful dog, though and lived for 17 years.

Alpal

Claire - you kitties are adorable. They must like to pose, too.

1Athena1

It was a total surprise, Alpal. It took a while to figure out what had happened. I was suddenly flooded with memories of this handsome, strapping Doberman who kept appearing in front of the house. We later found out that he and Athena had been seen having their tryst. Meanwhile, the chocolate lab who had been picked as official suitor (papers and all), and who we had over for four days and nights, never got beyond first base!