This is a rush transcript from "Special Report," February 23, 2011. This copy may not be in its final form and may be updated.


OBAMA, U.S. PRESIDENT: With respect to the issue of whether gays and lesbians should be able to get married, I've spoken about this recently. As I've said, my feelings about this are constantly evolving. I struggle with this.

JAY CARNEY, WHITE HOUSE PRESS SECRETARY: The decision is that we will -- the administration will not defend the defense of marriage act in the second circuit. Furthermore, the president directed the attorney general not to defend because of the decision that it is not constitutional, defend the defense of marriage act in other circuit, in any other case.


BRET BAIER, ANCHOR: Well, the defense of marriage act was signed into law by President Clinton back in 1996. The administration saying today they're no longer going to defend that in court. And there you heard the president from a news conference back in December. Here is what he said on the campaign trail back in 2008 about this issue - "I believe that marriage is between a man and woman and I am not in favor of gay marriage. What I believe is that if we have strong civil unions that provide legal rights to same-sex couples...I think that is the direction we need to go." What about the issue, we're back with the panel. Charles?

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Look, I can understand the president struggling, that's the word he used, with the wisdom of gay marriage, with the propriety, with its social effects, but to struggle over the constitutionality of it? This is after two years of defending the constitutionality, all of a sudden he wakes up on a Wednesday and decides that all of his arguments are now invalid -- color me skeptical on this one.

I think what is going on here is you've got a president who's got a listless base on the left, he's running for re-election, this is a nice way to throw a bone to shore up part of his constituency.

And second, here's a president who is all of a sudden out of nowhere, bringing up what the mainstream media likes to call a 'wedge issue, ' a divisive issue, out of nowhere, at a time when he's being attacked for his lack of action, his passivity on the debt issue, for his passivity, lack of action on the Middle East on fire, for his lack of leadership on the debt, all of a sudden he comes up with a social issue on which the Clinton administration had found something of a federal compromise.

It allows each state to be laboratory of democracy, work it out on its own. The key provision of the defense of marriage act is that states are not required to recognize gay marriage of other states so it doesn't federalize it. And that is a good compromise in a large country that is not united on this issue and allows each state to go its own way.

And all of a sudden he's saying I woke up this morning and I can't defend it even though his government is required to actually continue to enforce it. It makes no sense at all.

BAIER: Mara, there are a lot of people out there who are saying how does this work, that a president can say I'm not going to enforce a law?

MARA LIASSON, NATIONAL PUBLIC RADIO: He is going to enforce the law. He is no longer going to defend it against challenges to it in court. He's gonna enforce the law. And they said that that's his job to enforce all the laws on the books. What he's not going to do is defend this law against constitutional challenges. He could have gone further, I suppose, and say we're not going to even enforce it, but he didn't.

Ya know, this is something that the president has telegraphed for quite some time. I mean that quote you played of him in December. He was clearly heading towards this decision, it was just a matter of time. And just like he finally got around to doing "don't ask, don't tell." Ya know, the gay community has been frustrated. They feel that he made a lot of promises to them and that it's taken him an awfully long time to fulfill them. And I don't think this is something that he is bringing up to distract attention from the Middle East or the debt because otherwise he'd have to talk about this every day, and he is not going to.

BAIER: Well--

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: Well, the letter they sent said literally, quote "there is no reasonable defense of DOMA under the constitution." Of course, they've been making reasonable defenses for two years in courts-

BAIER: In court--

HAYES: And courts -- have found , lower courts have found this constitutional.

But you have the president saying on one hand I don't support gay marriage, even though he is struggling with it. But he finds laws based on his own belief unreasonable and unconstitutional. And though he finds these laws, or parts of these laws unconstitutional, he is not going to enforce them. I mean it's not possible to have more incoherent view.

LIASSON: No, he is going to enforce them --


HAYES: Right. He is going to enforce them despite the fact that there is no reasonable constitutional defense of them or of parts of them. And I literally I think it's not possible to have a more incoherent view if he tried.

BAIER: So, do you think this is look over here at the shiny thing?

HAYES: I don't know if that's that smart now. I think what it does is it-- this is going to keep popping up. If you continue to have court cases -- every time there is a court case it's going to come up, it's going to be in the news and the administration's going to be called out by ya know, gay rights advocates who say, 'look, you are not with us on the issue. ' And they don't want to be in the position.

LIASSON: Look, there's just one other point to make. Gay marriage, unlike abortion, the opinions toward it are changing and getting more tolerant and favorable, unlike abortion, where majorities still are pretty strong against that. But people also in the 33 states, I think, where there have been a referendum on this, I think all of them, gay marriage has been defeated. Yeah.

KRAUTHAMMER: And that's where it ought to be decided. That's why I think we have had up until now what you could call a stable resolution, allowing it to happen in those states where it's supported, and this all of a sudden is the administration saying we're going to nationalize this in a way I think is unwarranted and really quite unwelcome.

BAIER: That is it for panel, but stay tuned for a speech that may have been lost in translation.

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