No Defense of DOMA

The Justice Department just departed from its previous position on The Defense of Marriage Act. Here are some key passages from Attorney General Eric Holder's statement:

After careful consideration, including a review of my recommendation, the 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. 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…

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.

That is a rather bold statement. First the President has decided that "classifications based on sexual orientation should be subject to a more heightened standard of scrutiny." Standards of scrutiny are in theory "tests" that the Court uses to evaluate laws that are challenged under the Constitution. Almost every law passes the rational basis test. Almost all laws (except affirmative action) fail if the standard is "strict scrutiny". Whether there is an intermediate level of "heightened scrutiny" is a bit murky, but in most cases you can win by persuading the Court to adopt the standard of scrutiny that you prefer. Above, the Administration announces its own decision regarding the level of scrutiny appropriate to "classifications based on sexual orientation".

Second, the Administration announces its decision that Section 3 of DOMA is unconstitutional.

Third, the Administration is taking official action on the basis of its opinions, which is a good deal bolder than trying to persuade a Court to adopt its opinions. The Administration has decided not to defend a duly enacted federal statute in Court because it has concluded that the statute is unconstitutional. Can they do that?

Yes. But…

Nowhere in the Constitution does it say that the Supreme Court even has the power of judicial review. The power to overturn acts of Congress or of the States if they violate the Constitution is inferred from the nature of courts and constitutions generally, but it is strictly limited to exercises of judicial power in specific cases. The other branches of government must interpret the Constitution for themselves whenever they are exercising their appropriate powers.

What should the President do if he concludes that an act passed by a previous Congress and signed by a previous President is unconstitutional? Since the President is duty-bound to uphold the Constitution, perhaps he is obligated to nullify the law, in effect overturning it as a court might do.

There is a big problem with that. It means that a President might ignore any law he finds inconvenient merely by instructing his ministers to construct an argument against its constitutionality. I am reminded of Kenneth Branagh's Henry V listening to his scholars as they dutifully whisper that he has a legal right to all of France. Others have been reminded of George II whose scholars secretly whispered that water boarding was okay.

The Administration's position is not entirely clear, but it seems to be this: the President can instruct his Justice Department not to defend DOMA in court because he has concluded that it is unconstitutional. That creates problems for the judicial process. For a court to render a decision, two parties must approach the bench. If the Justice Department is AWOL, who argues for the federal act? That problem is serious, but I think it can be solved easily enough. The courts will have to recognize some party with standing to argue for the statute.

The Administration has not said that it can refuse to enforce a federal statute that it judges to be unconstitutional. That would be a much bolder proposition and could easily trigger a constitutional crisis. It is not clear, however, why the President could do the one thing and not the other.

I think the Justice Department's action was constitutionally sound, but I confess that we are making this up as we go along. I think their reasoning on the constitutionality of DOMA is nonsense. DOMA doesn't make any "classifications based on sexual orientation." It doesn't apply differently to homosexuals than to heterosexuals or anyone else. A heterosexual man who marries another man where that is legal has exactly the same rights under DOMA as a homosexual man similarly situated.

I also think that the President is lying. It isn't that he and his administration just now concluded that DOMA is unconstitutional. The President has long thought that. He has also said, at least since he was running for his office, that he is opposed to same sex marriage. That's a lie. He isn't and if he ever was, it was long before he sought federal office. The Administration's position on DOMA now would be more worthy of respect if he had been more honest from the beginning.

Comments

[duggersd]

What? President Obama is lying? Who would think THAT is possible?
I wonder if it is better that the Administration does not defend DOMA. If it did, what would stop it from "throwing" the case? I can see Eric Holder offering a halfhearted defense and essentially letting the other side win. If there is a group with standing who has the passion to defend DOMA, I believe that would be better than what the Administration would offer. Of course, this might suggest that I believe the Administration might do something unethical? Where would I get that idea?

[Dave]

First, "No Mo" is considered racist... But that's ok with you...

Then:
As a matter of history, Thomas Jefferson was the first President who felt compelled to cease enforcement of a statute he regarded as unconstitutional. Believing that the Sedition Act was unconstitutional, Jefferson ordered his prosecutors to cease all existing Sedition Act prosecutions. Jefferson felt constitutionally obliged to arrest the execution of unconstitutional laws. He also concluded that his Faithful Execution duty did not extend to unconstitutional laws because the latter were null and void. He was confident in his conclusions, believing there was "no weak part in any of these positions or inferences." [Georgetown Law Journal, 6/08]

And Then George W did it too...

The Justice Department will not defend a legislative provision that withholds federal money from transit systems that accept ads advocating the relaxation of drug laws.

The language, inserted into the fiscal 2004 appropriations omnibus (PL 108-199) by Rep. Ernest Istook, R-Okla., chairman of the Transportation-Treasury Appropriations Subcommittee, decreed that any local transit authority that ran ads advocating the legalization of drugs would forfeit any money extended through the omnibus.

[...]

Acting Solicitor General Paul Clement told the Senate legal counsel in December that the Justice Department would not appeal Friedman's decision, which had held "under well-established Supreme Court precedent [that] the funding condition amounted to viewpoint discrimination in violation of the First Amendment," and that "the government does not have a viable argument to advance in the statute's defense." [Congressional Quarterly, 1/26/05, via Nexis]

What I really want to know is this: Why do you need or why should the Federal Government protect your marriage?
For "small govt" conservatives this would be a huge and unnecessary expansion of government...

[Dave]

If one is concerned about "states rights" you need look no further than DOMA to see the boot of federal bureaucracy on the neck of smaller government and states rights...

[Ken Blanchard]

Dave: I chose the title of the blog post for poetic reasons. You are probably right to say it was chosen poorly. You might have pointed that out without being an ass. I suspect you can't help that.

Jefferson got away with a lot that modern presidents couldn't get away with. Are you then agreeing that G.W. was entitled to make up his own rules concerning torture?

It is silly to say that DOMA somehow interfered with State's rights. It empowered every state to have its own marriage laws without interference from other states or the federal government. My point, however, was not to defend DOMA.

[Jon S]

Dave,

At least on the second part you are missing the boat. In Article IV of the Constitution the Federal government has the power, as decided by Congress, to determine which acts and records of states should be given "full faith and credit" by other states. That is why you don't need a new drivers license every time you cross state lines. You license, which was given to you by a state, by an act of Congress is given full faith and credit by all other states. Is the is "federal bureaucracy" sticking its boot on the "neck of smaller government and states rights"? No, it is a reasonable provision in our Constitution that allows greater cooperation among the states. DOMA simply says that for the purpose of FEDERAL law, marriage is between a man and a woman. Thus states do not have to recognize same-sex marriages of other states. Marriage, amongst other things, is a legal arrangement. Again, because of full faith and credit clause, if you get married in one state you are considered married in all states. DOMA simply says (amongst other things) that states do not have to recognize same-sex marriages. If anything this protects states as they do not have to recognize marriages that their citizens, as of now, find illegitimate.

[Jon S]

Dave,

At least on the second part you are missing the boat. In Article IV of the Constitution the Federal government has the power, as decided by Congress, to determine which acts and records of states should be given "full faith and credit" by other states. That is why you don't need a new drivers license every time you cross state lines. You license, which was given to you by a state, by an act of Congress is given full faith and credit by all other states. Is the is "federal bureaucracy" sticking its boot on the "neck of smaller government and states rights"? No, it is a reasonable provision in our Constitution that allows greater cooperation among the states. DOMA simply says that for the purpose of FEDERAL law, marriage is between a man and a woman. Thus states do not have to recognize same-sex marriages of other states. Marriage, amongst other things, is a legal arrangement. Again, because of full faith and credit clause, if you get married in one state you are considered married in all states. DOMA simply says (amongst other things) that states do not have to recognize same-sex marriages. If anything this protects states as they do not have to recognize marriages that their citizens, as of now, find illegitimate.

[George Mason]

"Laws, we don't need to obey no stinkin' laws," "laws are for little people," for us "there is no controlling legal authority," because "it depends upon what the definition of is, is." As we have seen in the capitol in Wisconsin and now with the Obama decision not to defend DOMA liberals continue to believe they can make the rules to suit themselves. Obama has a Constitutional responsibility as the Executive to enforce the laws. If he doesn't like the law then he has a responsibility to request that congress change the law. He cannot rule by royal decree (though he seems to believe he can). The explanation by Holder is another indication of the fairy-tale world the Obama administration lives in (where there are no fundamentalist muslim terrorists either). If we don't like the way the game is going we will pick up our ball and go home. Maybe Obama and Holder can go hide out in Illinois with the Wi. Senate Dem's.

[George Mason]

One more thing, KB, do not be too quick to apologize to Dave. Liberals will, as we have long believed and has now been confirmed by the "Journolist" e-mails, label anything stated by a conservative as racist. On the other hand, insults and threats hurled by liberals at black conservatives is civil discourse

[George Mason]

One more thing, KB, do not be too quick to apologize to Dave. Liberals will, as we have long believed and has now been confirmed by the "Journolist" e-mails, label anything stated by a conservative as racist. On the other hand, insults and threats hurled by liberals at black conservatives is civil discourse

[Dave]

John S,

Your drivers license analogy is simply not true...

A 15 or 16 year old fully licensed in South Dakota is not granted the same rights in other states with Hawaii being the most extreme example. Look it up.

Ken,

Which Law did Pres. Bush choose not to enforce when he decided "torture" was not torture?

Are you OK with the redefinition of torture?

And (since you brought up Pres Bush) a virtual line item veto know as "signing statements" was used by Pres Bush. But again we see that sort of thing swept under the rug... When Dick Cheney (in reference to GWB) reaffirmed the Nixonian remark that If the President does it, it's legal, where were you?

Oh, that's right. You're not concerned about the LAW. Your "point" is to cast aspersions on anyone to your left...

[Ken Blanchard]

Actually, Dave, I was defending the Administration's decision. Sorry that it went over your head. As for the Bush Administration policies, I provided a link.

[larry kurtz]

Likely related: http://www.publicbroadcasting.net/kuer/news/news.newsmain/article/0/0/1763191/news/21511.Sons.of.Perdition

[Dave]

Ken, The last paragraph seems to make my point (about your "point")...

[Dave]

And for the love of GOD Ken, (at George Mason's urging) Do NOT be too quick to apologize... Especially after you gave this essay the title "No Mo Defense of DOMA" after we just had a discussion about how some tea partiers are being perceived as racist...

At least your sense of "political correctness" (long ridiculed by those on the right) prevailed and you changed the name before too many people found out...

[Ken Blanchard]

Dave: I conceded your point on the title and changed it. That is more than the NAACP did when Clarence Thomas was subject to blatantly racist slurs. Were you offended by that? I didn't think so.

Racism is a terrible thing. It is just as terrible on the left as on the right. False accusations of racism for crass political purpose is just as bad. The Tea Party people come off better than the NAACP in that regard, and better than yourself I might add.

[Dave]

But Ken, you see how your sense of "PC" took over and you changed the title?
Do you see that if you'd left the title in its original form, it WOULD be construed as "racist?"
I am not the NAACP, however, the views of a "black/African American" organization regarding a "black/African American," typically could not be construed as racist. And if you are referencing the term "Uncle Tom" I suggest you look it up and decipher its true meaning. Then please, debunk it in reference to Justice Thomas.

[Dave]

From http://emptywheel.firedoglake.com/2011/02/26/newts-singeing-statement/

Obama will continue to enforce DOMA. What he won’t do is defend a law he believes to be unconstitutional; but he’ll let a court decide whether he’s right or not.

Which makes what Obama did far far less abusive (in all senses of the word) than what George W Bush did with his long catalog of signing statements.

[Ken Blanchard]

Dave: Again, I was largely defending the Obama Administration here. I note that Obama's national security policy has been almost identical to that of his predecessor. Have you noticed that Gitmo hasn't been closed yet? Have you come to grips with the fact that Gitmo isn't going to be closed? Bush's interrogation policy probably went over the line. Has the Obama Administration done anything about that? No, and for good reason. Obama will abide by the decisions of the courts. Yes. So did Bush.