The Defense Of Marriage Act: Unconstitutional?

Mar 16th, 2011 | By | Category: Politics & Current Events

Recently, President Obama determined that the Defense of Marriage Act (DOMA)?the 1996 law that bars federal recognition of same-sex marriages?is unconstitutional. He directed the Justice Department to stop defending the law in court.Despite the fact that his administration had defended DOMA during the first two years in office, that department will no longer do so.  The Attorney General, Eric Holder, declared that ?The president and I have concluded that classifications based on sexual orientation? should be subjected to a strict legal test intended to block unfair discrimination and therefore DOMA is ?unconstitutional.?  The administration?s change in position resulted from an internal debate within the administration, first within the Justice Department?s Civil Division and then at the White House itself.  Both bodies reached the conclusion that gay people qualified for greater protection afforded to a handful of classes, like race or gender.  Under such a test, discrimination is presumed unconstitutional; hence their decision.

  • First, how unusual is the president?s decision?  At his confirmation hearings in 2009, Eric Holder stated that ?The duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to.?  He set his own standard??very compelling.?  Did he follow that standard?  According to our Constitution, it is the executive branch of the national government that enforces the laws of the nation.  As law correspondent, Adam Liptak, argues, ?Even when an administration believes a law to be bad policy or subject to plausible constitutional attack, the Justice Department almost always defends it in court.  Congress enacted the law, after all, and a president signed it.  It would be an odd system in which the Justice Department routinely overrode those determinations.?  Holder, and apparently President Obama, both believe that DOMA is an exception to the normal practice of the Justice Department.  This decision of the Attorney General and the president is provocative and obviously controversial.  After all, the president is, according to the Constitution, to ?take care that the laws be faithfully executed.?  Nonetheless, despite this most unusual decision, there are a few precedents for doing this.  John C. Eastman, law professor at Chapman University, argues that there are indeed occasional cases where the Justice Department should decline to defend a statute, particularly when it intrudes on presidential power.  But, he contends, a policy-based objection to DOMA does not even ?remotely qualify.?
  • Second, how have conservatives responded to this decision to no longer defend DOMA?  The overall silence of the conservative political leaders in the US is deafening!  In the hours that followed the decision, Sarah Palin?s Facebook was silent.  Mitt Romney said nothing.  Tim Pawlenty, former governor of Minnesota, waited one day and then released a statement saying he was ?disappointed.?  Newt Gingrich and Haley Barbour took their time in responding and then only with mild, rather tepid responses.  Mitch Daniels was silent.  Mike Huckabee called the decision ?utterly inexplicable.?  One can only conclude that the conservative leaders of this nation see the economic issues facing the US as far more important than cultural ones.  Several commentators have noted that gay rights issues are no longer significant to the conservative, Republican base.  Further, the Tea Party movement, now dominating so much of the conversation, rose in influence on issues associated with finances, the national debt and the spending binge of Congress, not social or cultural issues.  They are on the back burner, if they are even on the burner at all.  At least in early 2011, the matter of gay rights and its concomitant same-sex marriage are no longer compelling wedge issues.  The state of the American economy is causing all other issues to pale in significance.
  • Third, what are the implications of this decision by Holder and Obama?  It seems logical to conclude that DOMA is doomed.  If no one defends it in the courts, it will be ruled unconstitutional sooner rather than later.  It also seems logical to conclude that President Obama now believes that the full legalization of same-sex marriage in the United States is inevitable.  Further, it also seems logical that the President and his advisers no longer believe that there is much of a political risk to this position of embracing the legality of same-sex marriage.  That several Republicans backed the repeal of ?Don?t ask-Don?t tell? before Christmas is another indicator of how the nation is increasingly accommodating itself to the gay rights and same-sex marriage agenda.  For someone like me, who believes that God?s Creation Ordinance in Genesis 2:15-25 is binding on the human race, this is a sad day.  Our nation is now accommodating itself to a commitment to the ethical autonomy of the individual.  Whatever the autonomous individual sees as ethically right is to be protected by the state.  There are no universal ethical standards binding on all people.  It is the individual?s choice and that choice is sovereign.  I believe we will look back on this decision as a watershed decision abandoning God?s design for His most sacred institution?marriage and the family.

See Charlie Savage and Sheryl Gay Stolberg news article in the New York Times (24 February 2011); Adam Liptak in the New York Times (27 February 2011); Michael D. Shear and Sheryl Gay Stolberg in the New York Times (25 February 2011); and February 2011).

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