A DISCUSSION OF LAW AND JOURNALISM

Obama’s DOMA Decision on Solid Legal Footing

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By Trevor Timm

On February 24, in a major victory for gay rights activists, the Obama Administration reversed its two-year policy of defending the Defense of Marriage Act in court despite the President’s insistence he did not agree with the law. The Justice Department announced that it would no longer defend the act against lawsuits because it believes that “much of the legal landscape has changed in the 15 years since Congress passed” the law and it conveys the “stereotype-based thinking and animus the (Constitution’s) Equal Protection Clause is designed to guard against.”

While criticism from the Republican House leadership has been relatively muted, potential Republican presidential candidates have loudly denounced the decision.

Social conservative and rumored Presidential candidate Mike Huckabee was the first to jump on the supposed reversal, saying it was an “inexplicable political error.”

“I think he owes the people of America an explanation,” Mr. Huckabee said. “Was he being disingenuous and dishonest then [when he said he would defend the statute in court], is he being dishonest now, or did he change his view and if he did, when and why?”

Other presidential hopefuls charged that the President had reversed his policy, politicized a legal issue, and perhaps committed an “impeachable offense” by declining to defend the law in court.

But was this, in fact, a reversal of policy? How “political” was it? And is the decision in violation of the Constitution?

The Obama Justice Department has maintained that they will defend all statutes in court whether they agree with them or not, as long as there is an argument for their defense. And in a letter to House Speaker Rep. John Boehner (R-OH), Attorney General Eric Holder explained that the decision to no longer defend DOMA did not break that pledge, but the administration was faced with a new set of circumstances in the form of new lawsuits, Windsor v. United States and Pedersen v. O.P.M., that, unlike previous cases, did not merely require the Justice Department to defend DOMA from a constitutional challenge.  Now the administration was being asked to recommend the legal test that should be used to determine whether DOMA is constitutional or not.

The plaintiffs in both cases are challenging Section 3 of the Defense of Marriage Act, which forbids the federal government from recognizing same sex marriages. Specifically, Section 3 bars same sex couples (even those married in states where gay marriage is legal) from receiving the federal benefits that those in traditional marriages can, such as the federal income taxation rates for married couples and social security benefits.

Laws that discriminate against gender or race are presumed unconstitutional, meaning the burden is on the government to prove the law should not be struck down. The government must also meet a much higher burden—known as “intermediate scrutiny” or “strict scrutiny”—which is why laws discriminating against gender and race are virtually non-existent.

The Supreme Court has never applied strict or intermediate scrutiny to laws that discriminate against sexual orientation, and so different standards exist throughout the country.  Many circuits’ legal precedent states that laws discriminating against gay people need only a “rational basis” for implementation. In other words, the courts presume the law is constitutional so long as there is a “rational” argument for the law to stand—a much easier burden to meet than intermediate or strict scrutiny.

But Windsor and Pederson are being litigated in the Second Circuit, which does not have an established test to judge discrimination cases based on sexual orientation. That means it falls on the Justice Department to articulate which standard they think should apply.

President Obama has long said that he “believes DOMA is discriminatory and should be repealed” so it can’t come as a shock that, given the chance to articulate his own standard, he would choose to declare DOMA discriminatory in court as well.

Yet Mr. Huckabee said this of President Obama’s decision: “It may destroy him, may destroy his credibility, may destroy his campaign and candidacy and ultimately his term in office.”  It’s unclear exactly what Mr. Huckabee is talking about. A new poll conducted by Pew Research shows that the support for same sex marriage is at an all time high — the same number of people support it as oppose it. This trend of increasing support will likely continue as younger voters are much more supportive of gay rights than older voters.

Perennial presidential flirt Newt Gingrich, a man with a tawdry marital history (and several failed marriages), went even further than Mr. Huckabee in criticizing President Obama’s decision not to defend “traditional marriage.” The ex-speaker said that his decision to not defend the statute “is a very unconstitutional act.” In fact, he said, if “President Palin” (clearly a fantasy) had made a similar decision to President Obama’s, it would be considered an impeachable offense. He continued, “His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent.”

“Clearly it’s a violation of his constitutional oath,” he emphasized in his trademark hyperbolic style. “Clearly it is not something that can be allowed to stand.

In reality, Mr. Gingrich has the actual constitution confused with what he wishes it to say.  He is correct that the President’s job is to “enforce” the rule of law, which comes from the Article II, Clause 4 of the Constitution that says the President must “take care that the laws be faithfully executed.” But Mr. Gingrich is conflating defending the law and enforcing it, two different acts. The President must “faithfully execute” all of the laws on the books and the Justice Department has explicitly stated they will do just that—continue to enforce the law until it is struck down or appealed.

What the Constitution is silent on—and what LASIS pointed out during the “don’t ask, don’t tell debate—is the practice of defending statutes against lawsuits.  While the Justice Department does have an unofficial tradition of defending laws that they don’t agree with, there are many exceptions to that policy.

If Mr. Gingrich believes that it is an impeachable offense to decline to defend a law in court, then Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton should have been impeached for the same act. But with the 2012 Republican primary season approaching, who can be bothered by facts like that?

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  1. Kris Valiente says:

    That only makes sense. When you push for the military, which is probably one of the most conservative institutions in this country, to accept the homosexual lifestyle, you’re going to have to reform the federal hindering of such lifestyles. If I’m allowed to declare that I’m gay to the US military, then I should also be allowed to claim my ‘life partner’ (really hate that fuckin’ term) to receive family sep, BAH, and list her as a beneficiary for my SGLI. That’s the only logical way to really look at it. You’re pushing for equality in the military for ‘alternative lifestyles’, then you’ve got to allow service members protection of those family members. I knew that, the minute they worded in the repeal that they could not support any union not backed by the federal government, he’d have to rectify those federal policies and legislation.

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