States' Wrongs

John Yoo has some questions for President Obama on his new found faith in federalism regarding his policy that it should be up to the states to decided the question:

1. Obama's Justice Department has refused to defend the constitutionality of the Defense of Marriage Act.  The very purpose of the Act is to advance Obama's stated goal: to allow each state to decide for itself whether to legalize gay marriage, by allowing states to refuse to recognize gay marriages from out of state. President Obama can order -- tomorrow -- Attorney General Eric Holder to reverse the Justice Department's extraordinary decision to refuse to defend this federal law in court.

2. The U.S. Court of Appeals for the Ninth Circuit this spring struck down California's Proposition 8, which prohibits gay marriage. The grounds of the decision are directly opposite to President Obama's stated belief: the court found that the right to gay marriage is nationwide and not subject to state choice. President Obama can direct his Attorney General to support the efforts of Proposition 8's defenders to overturn the decision. In fact, he could have his Solicitor General file a friend-of-the-court brief when Proposition 8's defenders appeal to the Supreme Court (known as "petitioning for cert") recommending that the Court accept the case and reverse the Ninth Circuit.  He could even issue the order now, to take effect when the Prop 8 case hits the Supreme Court.

John is by the way a defender of gay marriage.