No Place For DOMA In Obama Administration

President Obama instructed U.S. Attorney General Eric Holder not to defend the Defense of Marriage Act (DOMA) because the Chief Executive believes that the law is unconstitutional. This public policy position regarding the protection of traditional marriage is a change from Obama’s stances on the campaign and during the first two years of his Administration.

Despite the verbal faux pas with Obama’s inauguration, the oath still requires the President to faithfully execute the office of President of the United States.  Surprisingly Article II Sect. 1 of the U.S Constitution does not include determining the constitutionality of laws but instead requires the oath taker “to preserve, protect and defend the Constitution of the United States.”

Whether President Obama likes it or not, 28 U.S.C. § 1738C (a.k.a. The Defense of Marriage Act) is the law of the land.  It was passed by Congress in 1996 when Hawaii was flirting with a judicial recognition of Same Sex “marriages”.  The law was designed to not force states steadfast in supporting traditional marriage to be obliged to honor these homosexual unions by Article IV Sect. 1, the Full Faith and Credit Clause, of the U.S. Constitution. The Defense of Marriage Act was passed by a vote of 87-13 in the Senate and a margin of 342-67 in the House and was signed into law by President Clinton.

However Obama as Chief Executive has determined by himself that the federal definition of marriage was unconstitutional.   The President has made this determination without being compelled by a Supreme Court ruling on the matter.  Jay Carney, President Obama’s new spokesman, indicates that the Department of Justice still enforce the laws, as they are required to do so.  But looking into the details, the portion of the law that the DOJ will no longer defend is  28 U.S.C. § 1738C, the part that effects states and the Full Faith and Credit Clause, so it effectively guts the law. So it is meddling in state’s rights as well as not defending the law of the land.

Richard Neustadt, a Harvard Political Science Professor who helped found the Kennedy School of Government, postulated that: “Where you stand is where you sit”.   This was intended to explain why governmental officials gravitated towards policies that reflected the institutions which they represented.  Looking at it from a good governance lens, Obama’s dereliction of duty makes no sense as it is not the President’s duty to determine Constitutional. According to Article III of the U.S. Constitution, the Supreme Court is the supreme arbiter of the constitutionality of the laws of the land.

But if one consider’s Neustadt’s maxim through a political lens, things become more focused. It kind of seems like a naked political move as Obama’s political support amongst Independents has eroded that a reliable and rich base is stroked for future support. So Obama is reflecting the sensibilities of those who keep him in his chair.

 Obama’s ukase seems aligned with former California Attorney General (and now California Governor) Jerry Brown’s refusal to use state resources to defend the California voters' will as expressed in in Proposition 8, which again defined marriage as between one man and one woman.  Some caution should be applied when adhering to Governor Moonbeam’s lead, as Brown was hectored as being ineligible for the Attorney General office, as he had not practiced law for five years prior to his election. But eventually a judge dismissed this suit as it was a political issue.

The laws be damned.  That sounds quite familiar.

UPDATE 03/01 During testimony before House committees, Attorney General Eric Holder said that DOMA will continue to be enforced as it is now on the books – but he will not allow DOJ attorneys to go to court to defend its constitutionality.  Whatever that means.