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DOMA: To defend, or not to defend?

Published: March 4, 2011
Section: Opinions


Three years ago, when then-presidential candidate Barack Obama declared that he would work towards the repeal of the1996 Defense of Marriage Act if elected, members of the LGBT community across the country, including myself, were hopeful. When this candidate actually became president, and his Department of Justice filed a brief defending DOMA in June of 2009, we were outraged and disappointed.

And now, upon hearing that just last week, Attorney General Eric Holder Jr. announced that he and the president had reviewed DOMA (likely in anticipation of two cases found DOMA to be unconstitutional and that the president has ordered the DOJ to stop defending it in court cases, the LGBT community feels…what?

Whether read on-line or overheard in passing conversation, the general reaction among the LGBT community has been something like, “Cool! That’s a good thing! Right?” Or else it’s been, “Well gee, maybe he cares after all.” Yes, it’s true that this is not the complete reversal of DOMA that we were hoping for, and it’s unclear what the effect of Obama’s decision will ultimately be – but doesn’t this public change of policy, re-defining the Obama administration’s official legal stance to support marriage equality while also opening Obama to attack from the many opponents of gay marriage, deserve a little more than that?

Opponents of gay marriage have certainly been more vocal about their views. In fact, conservative opposition towards gay marriage has nearly drowned out all reasonable criticism on the issue of whether the president, and the DOJ of the executive branch, has the right to decide that a law is unconstitutional and indefensible, with hysterical, petty, and factually incorrect claims.

Gay rights advocates have known for some time now that this is not only a legal policy decision on the part of the president, but also a justifiable action in the case of DOMA. So let’s take a moment and clear up that web of misconstrued accusations regarding unconstitutionality and impeachable offenses.

The executive branch of government is tasked with enforcing laws as well as defending them in court through the DOJ. US attorneys argue cases where the United States is a defendant, until it reaches the Supreme Court level, where the solicitor general takes over. He or she determines the position the government will take in defending a law, preparing briefs and arguing the case orally; and in some cases, may determine that the law in question his unconstitutional and indefensible, after which any member of Congress is invited to prepare a defense for the law.

This is the process usually taken when DOJ chooses not to defend a law. As stated in Attorney General Holder’s confirmation hearings, the DOJ has a duty to defend the laws of the United States, “unless there is some very compelling reason not to,” which is sometimes the case.

For example, in 1992 under the first Bush administration, the solicitor general at the time chose not to defend a US law in Hornell Brewing Co. v. Brady, a law which barred approval of any beer label using the words “Crazy Horse,” arguing that it wouldn’t pass First Amendment scrutiny. In 2004, under the second Bush administration, the solicitor general at the time chose not to defend a law barring the display of ads promoting medicinal marijuana on mass-transit vehicles belong to agencies that received federal funding, as the law was obviously based not on legal grounds but on personal viewpoint. During the Reagan administration, the DOJ chose not to defend a federal law in at least three cases, while in the Clinton administration, the DOJ took the stance of enforcing but not defending a law requiring the military to discharge personnel infected with H.I.V. As early as 1946, a solicitor chose not to defend a federal law in United States v. Lovett, and since 2004, the DOJ has chosen not to defend a federal law in court at least 13 times.

In the current case we have before us, it was not the solicitor general who chose what stance to take in defending a law, but the president and attorney general. As the attorney general is the overall head of the DOJ, and represents the United States in legal matters generally according the US government website, it is appropriate for him to decide how the DOJ will defend, or in the rare case, to not defend, federal laws. As part of the attorney general’s duty is to give advice to heads of the executive branch, including the president, upon inquiry, it is not inappropriate for the president to confer over and weigh in on this decision, though it is not necessary.

And the president and attorney general are not just throwing their weight around. As stated in the letter written by Holder, because DOMA is a law which in part targets a minority group, the LGBT community, with a history of discrimination against it, it should be held to “a more heightened standard of scrutiny” beyond what is currently required by the courts. It is because of this that the this law was considered to be unconstitutional and indefensible.

Ad this idea for the executive branch to stop defending DOMA did not just pop up out of nowhere. It appeared on a blog post on AMERICA blog in 2009 after Obama’s DOJ first filed a brief defending DOMA, as well as on a post on Queerty, which stated that “the Department of Justice has a clear history in picking and choosing which laws it will uphold and defend in court, and those it will not – on the basis of discrimination.” And just a week before President Obama declared the change in policy on defending DOMA, The New York Times wrote an editorial stating that he should not defend DOMA, and that “[t]he executive branch’s duty to defend federal laws is not inviolate. This one’s affront to equal protection is egregious.”

But now that the deed is done, the only voices that are to be heard are those of conservatives such as Representative Steve King, who wishes to cut the DOJ’s budget by the amount that would have been spent on DOMA in what would be an entirely petty and childish act of revenge; or Representative Trent Franks, who thinks Obama could be impeached for taking this action; or Mike Huckabee, who has stated that if Obama had taken this position during his presidential campaign, he might have lost.