I assume from your failure to respond you have not come up with this so-called constitutional duty.  That is because there is none.  Try to refrain from making statements of fact without any basis for doing so.

The govt was not forced or required to defend bad law prior to Brown. It choose to do so. There is a difference between doign something due to social norms (which I believe is your point) and legally mandated requirements (which is what you keep attempting to raise the social beliefs to the level of).

First, you misunderstood my comment.  I wasn't talk about Obama.  I was talking about those individuals who praise those court decisions as victories for equality and then turn around and say that gays should pursue equality through the court system.  There are those who say this is not the right time for a DOMA challenge because of the make-up of the court system.  I wouldn't necessarily disagree with that.  But I have a big problem with those who tell us to wait for Congress to give us equality.

As for your argument, I ask, was the federal government a defendant in either of those cases?  Did President Eisenhower come out in favor of ending segregation?  Was Richard Nixon pro-choice?

Although the administration used your "we had no choice defense" with the offensive, homophobic DOMA brief, not every buys it.  Richard Socarides, a former Clinton administration official, wrote a post for AMERICAblog arguing that the administration's hand weren't necessarily tied.

I was equally troubled by the administration's explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.

No matter what the president's personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.

I know and accept the fact that one of the Department of Justice's roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case - and not in this way. To defend this brief is to defend the indefensible.

Actually, the Federal Gov't made no arguments in either BROWN v. BOARD OF EDUCATION or ROE v. WADE since no Federal statute was involved. Lawyers represented the Board of Education and the Texas Attorney General, respectively.

My only problem with having this end up in court is that for every BROWN v. BOARD OF EDUCATION, there's at least one PLESSY v. FERGUSON (or worse, DRED SCOTT).

But it is true that the Dept. of Justice ALMOST NEVER declines to defend a Federal Statute. For a detailed look at this issue, check out http://hunterforjustice.typepad.com/hunt er_of_justice/2009/06/when-does-justice- department-decline-to-defend-statutes.ht ml which was written when a same-sex couple from California challenged DoMA about a month ago.

As much as DoMA sucks, I'd not support declining to argue it in court because (a) just because DoJ doesn't argue it doesn't mean the challenge would prevail (likely it will, sad to say), and (b) Given the Executive Branch duty to enforce the laws passed by Congress and duly signed into law, I don't believe it is proper for the President or DoJ to decide which laws on the books they will and won't enforce on any given day.

Taken to an extreme it would render the law-making process almost irrelevant if Presidents start ignoring laws they don't like on a large scale, BUT MORE IMPORTANTLY, if the Executive Branch decides to stop enforcing a collection of laws, eventually somebody or some entity will take the Gov't to court and tie them up in litigation in an effort to force enforcement, potentially bogging down any administration's efforts to do anything but spend their term of office in court.

I wholeheartedly support equal same-sex marriage rights and don't really care if they come about via courts or legislation - whatever works fastest and is most impregnable against efforts to reverse such rights.

It sounds good and would make a symbolic statement if the DoJ just refused to argue the case, but it wouldn't guarantee a decision against DoMA, and any progress made by an Executive Branch refusal to argue against or enforce the law would itself be too easily assailed and reversed on at least a legal basis.

There is little historical evidence for your assertion in recent history.

my guess is that we're looking at a potential 5-4 decision on SCOTUS that DOMA is constitutional...the only wild card to me is Clarence Thomas and that's because I can see him striking down DOMA as unconstitutional because it's a violation of the 10th Amendment...but then again it doesn't stop states from recognizing same-sex marriages, it just doesn't force them to, which might not actually violate the 10th amendment.

On the level, I can see DOMA being struck down as a violation of Full Faith and Credit with Lawrence v. Texas as precedant, but I can't imagine who would be the fifth vote.

I am more than sure that Breyer, Ginsburg, Stevens and Sotomayor would be on the side to struck down DOMA...I can't see which of the other five would strike it down.

If SCOTUS votes to uphold DOMA, then that creates the push to overturn it in Congress...Based on history; Dredd Scott, Plessy, Mutual, Caminetti, Takao Ozawa...I am not convinced SCOTUS would overturn DOMA, at least not at first...they have been known to make decisions that fly in the face of equality in the past.