DOMA and Executive Responsibility

“If executive officers were to adopt a policy of ignoring or attacking Acts of Congress whenever they believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system.”
— Benjamin Civiletti, U.S. Attorney General under President Jimmy Carter

Who knew defending marriage would be such a chore?

In 1996 President Clinton signed into law the Defense of Marriage Act (DOMA), after it passed the House (342–67) and the Senate (85–14) with strong support. And the Department of Justice has defended that law in court ever since, as it is legally required to do. In July of 2010, a federal district court judge declared that one particular part of DOMA was unconstitutional; that ruling was appealed in Oct. 2010. Then, last month (2/23/2011) President Obama and Attorney General Eric Holder announced that the administration had decided it agreed with the unconstitutionality decision, so the Justice Department (DOJ) would no longer be defending the law.

Attorney General Eric Holder

Attorney General Eric Holder

This is what’s known as an “end run” around Congress, since Obama already knows that the current Congress could/would not pass a repeal (though Sen. Dianne Feinstein is still going to try), as he would like. Is it legitimate? Personally, regardless of the subject of this particular law, I think this move is in itself illegal and another sign of this administration’s arrogance. Unless and until Congress repeals DOMA or the federal courts render a definitive ruling against it, the DOJ is mandated (from what I understand) to defend it. Period.

“Hey, buddy! You don’t get to pick-n-choose!”

You have to wonder what law(s) will be next to be unilaterally abandoned by this Administration. Isn’t this supposed to be a country founded on the Rule of Law, as opposed to the whim of the person(s) in office? This is a dangerous precedent.

Say what you will about President Bush and some questionable things that may have gone on in his DOJ, but he/they never pulled anything like this. As much as Bush objected to the McCain–Feingold Act (2002), certain provisions of which he believed were probably unconstitutional, the Bush Justice Department vigorously defended it in court. The law didn’t infringe on any core presidential authority, and a reasonable argument was made on its behalf. Same goes for DOMA. The McCain-Feingold Act got the full legal support of the DOJ. Law and principle were upheld. Are such considerations beneath Obama & Holder?

That being said, the current shenanigans may actually work in favor of those of us who support DOMA. As others have pointed out, now we don’t have to rely on half-hearted (if that) attempts to defend the law by Holder and his lieutenants. I am encouraged by Speaker of the House John Boehner’s announcement and taking steps to make sure DOMA gets the defense in court that it deserves.

So, what exactly is so offensive to Obama, Holder, et al.? Primarily, it’s Section 3 of the Act, which says that,

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” (italics added)

Gasp! That is, after all, the millennia-old understanding of who are to be united and socially recognized in this thing called “marriage” — particularly in Western civilization. Here in the U.S., almost 40 states have enacted their own versions, and traditional marriage has been enshrined in 31 state constitutions. Its validity and constitutionality are beyond question. Or, at least, it should be. But, nowadays, there is a very vocal minority who not only doesn’t like that but wants to change (by law or judicial fiat) the “definition” of marriage to include same-sex couples.

In the next few weeks (hopefully), I plan to have a series of posts explaining why I believe the passing of any law that legalizes — and, thereby, endorses — same-sex marriage is a serious mistake for everyone. (And, yes, eventually I’ll do the one on capital punishment that I promised back in December.)

Meanwhile, visit the National Organization for Marriage for more information on the legal & societal aspects of this decision.

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