More on why Obama’s new position on DOMA cases matters to federal courts

There are a lot of analyses about the import and meaning of the President’s new position that Section 3 of DOMA is unconstitutional. We had an excellent discussion about it last night here with USC Constitutional Law Professor David Cruz.

One of the most interesting written pieces I’ve seen was forwarded to me by Scott Wooledge (a.k.a. Clarknt67). It was written by Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, at his blog, Balkinization. Balkin begins his post by noting that he was rather dismissive of Judge Tauro’s DOMA decisions last summer. But, now, as the title indicates “it’s a whole new ball game”:

Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree.

Thus, it was only after the Truman Administration asked the Supreme Court to overturn Plessy v. Ferguson in Sweatt v. Painter in 1950, and again in the Brown litigation in 1952, and after the Eisenhower Administration’s Justice Department concurred with the Truman Administration when it came into office, that the Supreme Court finally felt comfortable overturning Plessy v. Ferguson in Brown v. Board of Education in 1954. After the Bush Administration took the official position that the Second Amendment protects an individual right to bear arms in self defense (around 2001), this provided political cover for the Justices to reach the same conclusion in 2008 in District of Columbia v. Heller. Note that the President’s explicit and public support for a constitutional position does not have to be a reason explicitly stated in judicial opinions, but it can be an important factor nonetheless.

The Administration’s decision to switch sides does not by itself guarantee what the lower federal courts or the Supreme Court will do. But it adds to the weight of social forces moving toward the recognition of equal rights for gays and lesbians.

Yes, judges are influenced by what’s happening in the world around them. And, the public’s views on same-sex marriage are changing fast….evolving, so to speak.

Balkin’s full post is worth a read.


On October 27, 2010, Joe was one of five bloggers who interviewed President Obama. Joe is a DC-based political consultant with over twenty-five years of experience at both the state and federal level. Joe has managed political operations and legislative efforts for both candidates and issues-based organizations. For seven years, he was the Director of State Legislation at Handgun Control, Inc. He served as that organization's first Political Director during the 2000 cycle. Joe is a graduate of the University of Maine School of Law. In addition, he has a Masters in Public Administration from Lehigh University and received his B.A. from the University of New Hampshire. Joe also has a fun dog, Petey, a worthy successor to Boomer, who got Joe through eight years of Bush and Cheney. Joe likes to think he is a world class athlete having finished the 2005 Chicago Marathon in the time of 4:10. He has completed six other marathons as well -- and is still determined to break the four hour mark.

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