By Susan Brinkman, OCDS
The Obama Administration announced yesterday that is has pulled its legal support for the federal Defense of Marriage Act (DOMA) because it believes the law is unconstitutional.
The Washington Times is reporting that Attorney General Eric H. Holder, Jr. released a statement on Wednesday saying that the President has decided his administration will cease to defend the law, which stipulates that marriage is between one man and one woman.
“[T]he President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Mr. Holder said. “The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.”
The decision now leaves defense of DOMA in the hands of Congress, which can instruct its own attorneys to defend federal laws. Congressional leaders have not yet announced how they plan to proceed.
Although there is a precedent for attorneys general refusing to defend state laws if they believe those laws are unconstitutional, it is “a very, very rare thing,” said Jim Campbell, an attorney with the Alliance Defense Fund.
“We’re talking about hundreds of years of history, 50 states, and there have only been a handful of instances” when this occurred, he said. “Typically, when a law is challenged, the government has a duty to defend the law, and typically they do so with the most vigorous possible defense.”
But the Administration has not been defending DOMA very vigorously in court challenges throughout the country and has even stated that they support repeal of the law.
Brian Brown, executive director of the National Organization for Marriage, recently told The Washington Times that he suspected the administration was deliberately tanking cases where DOMA was being challenged by homosexuals.
“They purposely avoid arguments that are winning time and time again in court,” Mr. Brown said. “Even scholars on the other side of this issue have said, ‘What is going on here is wrong.’ Anyone who cares about constitutional government should be very concerned about what’s happening in the DOMA case.”
The decision also raises serious questions about how much latitude the executive branch should have over laws it doesn’t agree with.
“This decision by President Obama and the Department of Justice is appalling,” said Family Research president Tony Perkins. “The President’s failure to defend DOMA is also a failure to fulfill his oath to ‘faithfully execute the office of President of the United States.’ What will be the next law that he will choose not to enforce or uphold?
“Marriage as a male-female union has been easily defended in court and overwhelmingly supported by the American people. There is absolutely no excuse beyond pandering to his liberal political base for President Obama’s decision to abandon his constitutional role to defend a federal law enacted overwhelmingly by Congress.
“With this decision the President has thrown down the gauntlet, challenging Congress. It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the President’s neglect of duty,” concluded Perkins.
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