When President Barack Obama took his oath of office on the Lincoln Bible, he swore to “faithfully execute the Office of President of the United States” and to “preserve, protect and defend the Constitution of the United States.” By his decision last week to instruct the Justice Department no longer to defend in federal court the 1996 Defense of Marriage Act (DOMA), President Obama, according to a strong statement released by the General Counsel to the United States Bishops Conference, engaged in an overt “abdication of the responsibility of the Executive Branch to carry out its constitutional obligation to ensure that the laws of the United States are faithfully executed.”
As described by his Attorney General Eric Holder, President Obama’s rationale for the decision was his conclusion that section 3 of DOMA is “unconstitutional.” Section 3 states, “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” In other words, President Obama, who campaigned as a constitutional law professor who said he supported the traditional definition of marriage, is now claiming that the definition of marriage as the legal union of one man and one woman is contrary to the Constitution
Senator John Kerry immediately defended President Obama’s action, declaring, “DOMA was unconstitutional in 1996, and it’s unconstitutional today, and the Obama Administration made the right call to no longer defend it in the courts. The Defense of Marriage Act has never been about defending marriage. It’s been nothing more than an unconstitutional effort to deny same-sex couples basic rights and protections.” That’s quite a statement, considering that DOMA was passed by the Senate 85-14, by the House of Representatives 342-67, and signed by President Bill Clinton. So Senator Kerry is basically accusing President Clinton and the 85 percent of Senators and 84 percent of House Members who voted for DOMA not only of passing or signing an unconstitutional piece of legislation but of doing so for no other reason than to “deny same-sex couples basic rights and protections.” While the Massachusetts Senator has a reputation for making charged statements against those not in his own political party, such accusations would likely come as a huge surprise to President Clinton and to the vast majority of Senator Kerry’s fellow Democrats in the 1996 Congress who overwhelmingly supported the measure. They probably would not appreciate the suggestion that they’re bigots who passed a prejudiced measure, liars who violated their constitutional oaths to pass an unconstitutional bill, or halfwits who failed even to recognize that DOMA was unconstitutional.
In our system of government, the determination of the constitutionality of legislation passed by Congress and signed by the President of the United States is not for future presidents to decide, but for the courts. The role of the president is to “faithfully execute” those laws, which has always been interpreted not just as enforcing the laws but defending them in court when they are challenged by citizens. For the President to neglect his constitutional responsibility to defend DOMA while at the same time summarily declaring DOMA unconstitutional is not only an act of remarkable chutzpah and constitutional inconsistency but sets a precedent that troubles even legal scholars who want to see the definition of marriage expanded to embrace same-sex couples.
One such legal scholar, Professor Orin Kerr of George Washington University Law School in Washington, DC, wrote that the Obama Administration’s move was basically an “executive power grab.” After noting his opposition to DOMA, he wrote on his popular legal blog:
“If you look at AG Holder’s reasons for why [the Department of Justice] won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that ‘the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA.’ This theory is not compelled by case law. … 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,” Kerr continued, “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.”
Former Speaker of the House Newt Gingrich, who opposes DOMA, put some flesh on Kerr’s concerns about the potential political consequences of President Obama’s dereliction of constitutional duty and arrogation of a new executive right to constitutional review. “Imagine that Governor Palin had become president,” Gingrich said in an interview with Newsmax. “Imagine that she had announced that Roe versus Wade in her view was unconstitutional and therefore the United States government would no longer protect anyone’s right to have an abortion because she personally had decided it should be changed.” Not only is President Obama “breaking his word to the American people,” Gingrich charged, since he has repeatedly assured the American people that he supports the traditional definition of marriage, but “he swore an oath on the Bible … that he would uphold the Constitution and enforce the laws of the United States. He is not a one-person Supreme Court. The idea that we now have the rule of Obama instead of the rule of law should frighten everybody.”
For defenders of marriage, the good news is that the Obama Administration’s decision to abandon all pretense of defending DOMA in court — its past deliberately ineffective defense gave new meaning to legal malpractice –will at least clear the way for the House of Representatives to appoint a legal team that will be able to mount of vigorous defense of the constitutionality of marriage as the union of one man and one woman.
For those who love our country, however, the issue of the constitutionality of the president’s action remains. Our system of government with its system of checks and balances does not allow for an imperial presidency in which the executive branch can usurp the role of the courts and unilaterally declare unconstitutional a bill passed overwhelmingly by Congress and signed into law by a predecessor. We don’t allow the president to act as a “one man Supreme Court.” All dedicated citizens, regardless of their position on DOMA, must condemn the president’s abdication of his true responsibilities and attempt to expropriate pretended ones.
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