President Obama's decision to not defend a Defense of Marriage Act provision defining marriage for federal law as only the union of a man and a woman is surprisingly unsound constitutionally, professionally and as a matter of public duty.
The argument that Section Three of DOMA is unconstitutional defies strong recent precedent. Before the Obama administration, lawsuits challenging DOMA had been rejected by federal courts many times (from Florida to California to Washington) and had never succeeded. Five prior federal court decisions had rejected claims that DOMA is unconstitutional.
Only after the Obama administration began "defending" DOMA did a federal trial judge rule against DOMA. In that case, even the Washington Post politely called the Obama administration's defense of DOMA "tepid." The Justice Department lawyers conceded critical facts, declined to invoke the act's congressional history and abandoned defenses that had been successful in prior cases successfully defending DOMA. In short, the Obama administration did not competently or credibly defend DOMA.
President Obama's novel declaration that sexual orientation (like race or gender) is a specially protected category subject to heightened judicial scrutiny is doubly radical. Every federal court of appeals that has considered the issue has rejected that claim. Just last month, prominent gay rights law 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."
If it is unconstitutional, as President Obama now decrees, for Congress to refuse to recognize same-sex marriages under that newly minted "constitutional" standard, neither could states constitutionally refuse to recognize same-sex marriages. In other words, this is a transparent attempt not only to unilaterally repeal DOMA, but to effectively mandate same-sex marriage throughout the United States.
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 laws defining marriage as the union of man and woman. Indeed, the Supreme Court has itself declared that marriage is the union of "one man and one woman."
President Obama's decision to quit defending DOMA in the middle of an appeal may make the president popular with the gays and their supporters in his own political party, but it comes at a high cost to the nation. The important tradition of the U.S. government to defend all laws even if the party in office dislikes them has been sacrificed. The integrity of the Department of Justice should not be bartered for political favors.
The Obama administration may have feared that if the suit against DOMA went to the Supreme Court, the court would uphold DOMA, notwithstanding the administration's weak defense of it. The Obama administration chose not to run that risk by deciding against defending DOMA further. Petty state politicians may get away with that dishonorable tactic, but it is unworthy of the president and the attorney general of the United States.
The place for President Obama to try to change DOMA is in Congress, where DOMA was enacted 15 years ago. Many bills to repeal or revise DOMA have been introduced in Congress. Even last year, when the Democrats had huge majorities in both Houses of Congress, they would not repeal DOMA. Now Congress needs to step up to defend DOMA and do the job that President Obama was elected to do.
Sadly, the hope 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.
And since "what goes around comes around" in Washington, this tragic mistake simply sets a lower standard for disregarding the rule of law in order to get political gain.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at the Brigham Young University law school.
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