Refusal to Defend DOMA

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Refusal to Defend DOMA

Post by wardle on Tue Mar 01, 2011 3:06 pm

Refusal to Defend DOMA

On February 23, 2011, President Obama announced that he would not defend the federal Defense of Marriage Act (DOMA) provision that defines marriage for purposes of federal law as the union of a man and a woman. The reason he gave was that he has decided (1) that laws that discriminate on the basis of sexual orientation must be subject to "heightened scrutiny" by the courts, and (2) that under that standard of judicial review, DOMA is unconstitutional. Thus, he will not defend DOMA in the courts where lawsuits challenging it are pending, including an appeal in the federal court of appeal from a trial court ruling that had ruled this summer that DOMA was unconstitutional, even though the Obama administration had repeatedly said that it would appeal that ruling.

President Obama's decision to stop defending DOMA is unsound legally, constitutionally, professionally, and as a matter of public duty. DOMA was enacted by overwhelimingly bi-partisan vote in Congress fifteen years ago, and was signed into law by the last Democratic President, Bill Clinton. DOMA has been faithfully enforced and upheld consistently since then, until now.

President Obama's claim that Section Three of DOMA is unconstitutional defies strong, recent precedent. Before the Obama administration, lawsuits challenging DOMA had never succeeded but had been rejected by federal courts many times (from Florida to California to Washington). Previous administrations had successfully defending DOMA in at least four separate cases before five judicial tribunals (once on appeal), and had won every case.

Only after the Obama administration began “defending” DOMA did a federal trial judge rule against DOMA. But the Obama administration had not credibly defended DOMA in that case. Even the Washington Post (which is very sympathetic to same-sex marriage and the Obama administration) politely called President Obama's defense of DOMA “tepid” in that case because the Obama administration did not credibly defend the law. The administration's lawyers in that case declinded to make the arguments that had succeeded in defending DOMA in previous cases, and openly argued that DOMA was bad law and should be repealed. It came as no surprise to anyone that the judge ruled against DOMA.

President Obama’s novel declaration that sexual orientation (like race or gender) is a specially protected category subject to heightened judicial scrutiny is extremely unpersuasive. Every federal court of appeals that has considered the issue has rejected that claim. Even some law professors sympathetic to same-sex marriage question that claim. Just last month, a very prominent gay rights professor, Kenji Yoshino of NYU Law School, wrote in the Harvard Law Review that such “heightened scrutiny” claims “have an increasingly antiquated air in federal constitutional litigation.”

Protecting marriage as the union of a man and a woman can be sustained even the most rigorous standard of "heightened scrutiny." For two centuries Congress has defined marriage, parenthood, and other family relationships for purposes of many federal laws (immigration, taxes, social security, military benefits, etc.). The Supreme Court repeatedly has upheld such laws. Indeed, the Supreme Court itself has declared that marriage is the union of “one man and one woman.”

The effect of President Obama's declaration not only will unilaterally repeal DOMA, but it will effectively mandate same-sex marriage throughout the United States. If it is unconstitutional, as President Obama now decrees, for Congress to refuse to recognize same-sex marriages under his newly-minted “constitutional” standard, neither may states constitutionally refuse to recognize same-sex marriages. A President lacks authority to dictate same-sex marriage for the nation or the states.

President Obama’s decision to quit defending DOMA in the middle of an appeal smacks of partisan politics. While it will make the President popular with the gays and their supporters in his own political party, it comes at a high cost to the nation. The important principle of integrity, of the U.S. government defending all laws even if the party in office dislikes them has been sacrificed. The U.S. Justice Department has a proud tradition of defending all laws enacted by Congress despite changes of administrations, despite personal disagreements with the policies involved. It is this standard of high professionalism that is now violated by President Obama's decree.

The Obama administration must have feared that if the suit against DOMA went to the Supreme Court, the Court would uphold DOMA, even despite the administration’s weak defense of it. The Obama administration chose not to run that risk, by not defending DOMA further. That is unworthy of the President and Attorney General of the United States.

The place for President Obama to change DOMA is in Congress, where DOMA was enacted fifteen years ago. Now the President forces Congress to step up to defend DOMA and do the job that President Obama was elected to do.

The belief that opponents of DOMA and supporters of same-sex marriage could be trusted in public office to faithfully defend and enforce the laws, despite their personal preferences, has been severely damaged by President Obama’s political move. It is said that "what goes around, comes around" in Washington, so President Obama's decision to not defend a law that he does not like (DOMA) invites the next Republican president to do the same thing. For example, it invites a Republican president to refuse to defend President Obama's very controversial health care reforms.

So as a matter of family law, constitutional law, legal professionalism, and civic responsibility, President Obama's decision to quit defending DOMA is very troubling.
Lynn D. Wardle
wardlel@law.byu.edu

wardle
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