Wednesday, July 14, 2010

Lefty Legal Guy Calls for DOMA Appeal

My favorite legal analyst, NYU Law professor Arthur S. Leonard, has kept on the decisions invalidating DOMA in our U.S. District Court. He makes a strong, multi-pronged argument for the Obama administration to appeal.

A key component is that until either ruling voiding the Defense of Marriage Act withstands appeals at the federal level, its findings are not precedent for other cases. He also explains why the limited pleading in the Gill case will remain restricted to the plaintiff's filing unless it wins on appeal.

A bit scarier is the call for the feds to push for clarity on the 10th Amendment finding in the court here. As Leonard writes, "Judge Tauro's reasoning, while well-intentioned and reaching a happy result in this case, does not stand on firm precedential grounds, and seems to fly in the face of Supremacy Clause jurisprudence that goes unmentioned. " With many different laws reliant on the administration's presumption that federal needs trump states', that can't go unsettled.

Leonard has little sympathy with those who yell for Obama to let the rulings stand. I also wonder whether they have a strong overlap with those in the LGBT and lefty communities who have been terrified for any aspect of same-sex marriage to go to federal courts.

Instead of begging for a bye on the appeal, Leonard would like the appeal to go ahead. Meanwhile and more important to him would be lobbying Congress to repeal all of DOMA. Both houses have bills doing that in the works.


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