The Radical Position Taken By The DOJ And President Obama In Its Refusal To Defend The Defense Of Marriage Act (DOMA)

The Justice Department has now said they shall refuse to defend the Defense of Marriage Act from legal challenges because, in the words of a letter sent from Attorney General Eric Holder to House Speaker John Boehner, the "President of the United States has made the determination that Section 3 of the Defense of Marriage Act ("DOMA")... violates the equal protection component of the Fifth Amendment." If the federal government is disallowed from defining marriage (based on "equal protection") for purposes of federal benefits and administration as between man and woman, I don't see why State traditional definitions of marriage should be able to survive the 14th Amendment Equal Protection Clause challenges already taking place either. In other words, by taking this position, the White House has effectively endorsed interpreting the Constitution as requiring the redefinition of marriage to include homosexual couples. This position means not only that Obama has effectively flipped on his personal position on gay marriage, but really supports the redefinition of marriage as a matter of Constitutional law at all levels of government, local or federal. He is advocating warping the Constitution to require this extreme position, despite it clearly not being the original meaning of any Constitutional provision or even being required by any Supreme Court precedent.

Further, DOMA does not deal with the right to marry itself (which is clearly a State issue). As President Bill Clinton said on September 20, 1996, just one day before signing the Act, "I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms 'marriage' and 'spouse'. This legislation does not reach beyond those two provisions." DOMA's Section 3 is the portion that specifically deals with the definition of marriage for the purposes of federal law. Section 3 essentially stated that in relation to federal laws, such as those regarding federal benefits, marriage was to be accorded its traditional meaning. However, States are still completely free to redefine marriage if they so choose, and to use their own funds as they wish. Federal law not recognizing a certain subset of marriages that appear in a certain subset of States for the purposes of federal funds is not a violation of equal protection, or for that matter the Tenth Amendment (as a Federal District Court in Boston ruled last July). I don't see this as a violation of "equal protection" because DOMA applies the longstanding definition of marriage, which in fact predates American law itself, equally to all who fall within that traditional definition for the purposes of federal law. It also cannot possibly be a Tenth Amendment issue because it is not State funds that are even at play and DOMA is in no way interfering with the State ability to define marriage for purposes of State law.

But the administration has taken a radical new view, a view that even the Supreme Court has so far been reluctant to endorse. The Department of Justice now says that laws challenged on the basis of a claim of sexual orientation discrimination must be subject to "heightened scrutiny" rather than "rational-basis." The letter concludes by saying Holder "will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3." The phrase "heightened scrutiny" has usually been used interchangeably with "intermediate scrutiny" which is applied to laws dealing with gender, but it is unclear if the two are actually legally interchangeable. Further, the highest level of scrutiny is afforded to laws dealing with race, known as "strict scrutiny." What is clear from the letter is that the Obama administration is declaring gays a "suspect class" and any law that can be seen as discriminating against gays should therefore face a heightened level of review in the same way as laws dealing with gender, or perhaps even race (and this is already seen by the constant comparisons of interracial marriage and Loving v. Virgnia with gay marriage on the part of advocates for the redefinition of marriage in court and in the public sphere). It is taking the position that there is no difference between one's gender and sexual preference, or perhaps even one's race and sexual preference. The ramifications of this notion are quite boundless. It would certainly apply to marriage at the State level as well, and if actually taken to its logical conclusion far beyond that. Traditional values as they relate to sexual mores would now be completely denigrated to the same level of sexism or racism, and this would be enshrined into Constitutional law. It would essentially treat traditional moral values the same way as misogyny or white supremacy. To think this would not have wide effects and ramifications beyond just the definition of marriage is to not understand what is truly taking place in advocating this shift in the legal landscape.

Finally, it would be the first time a suspect class is created by virtue of proclivities toward a certain type of sexual conduct. That may sound politically incorrect, but it is factually correct. To afford the protections to a new suspect class of persons when the classification is intimately tied to conduct (i.e., homosexual sexual relations) is to completely change the structure of equal protection jurisprudence as we know it in a radical fashion. This would go farther even than the 2003 Supreme Court ruling of Lawrence v. Texas which overturned Texas's sodomy law, because that decision did not expressly state that homosexuals are a "suspect class" worthy of "heightened scrutiny." It rather said that the sodomy law did not meet "rational-basis" as the Court could find no "legitimate State interest" as a matter of "substantive Due Process." In fact, in her concurrence, Justice O'Connor specifically said that "preserving the traditional institution of marriage" was a "legitimate state interest." Of course, the new Obama view simply does not allow for this to be the case.

The CATO Institute's Jason Kuznicki writes in regard to practical implications of the Executive branch refusing to defend duly passed Congressional statutes: "Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?" Kuznicki is right. If the President believes a law is unconstitutional, he can use his veto power to block it or rally Congress to overturn it. He should not be able to ignore his Constitutional duty to "take care that the laws be faithfully executed."

Meanwhile, Law Professor Orin Kerr is rightly worried by this development and further explains the implications of this decision on Executive power:

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

What should be all too clear is that the Obama administration has radically departed from the Constitution and his duty as chief executive of these United States. Tweet