IGNORING DOMA COULD HAVE SERIOUS CONSEQUENCES
On February 23, Attorney General Eric Holder informed Congress that his Justice Department had been ordered by President Obama to stop defending the Defense of Marriage Act (DOMA) in the courts because Obama believes that it is unconstitutional. Obama consistently said that he opposed the law during the 2008 presidential campaign.
DOMA passed overwhelmingly in the House and Senate before it was signed into law by President Bill Clinton in 1996. The law 1) prohibits the federal government from extending marital benefits to same-sex couples; 2) allows states that ban same-sex marriage to refuse recognition of same-sex couples married in states permitting such marriages; and 3) defines marriage as a legal union between a man and a woman.
The Constitution does not provide language either allowing or prohibiting same-sex marriages. Thus this should be a state, not a federal, issue. However instead of challenging the law in court or pushing for Congress to repeal the measure, the Obama administration has decided to simply stop defending it in the courts.
Obama has stated that the law is unconstitutional, and he may very well be correct. However as the chief executive of the country, the president takes an oath to enforce the law. He cannot pick and choose which laws he wants to enforce. The administration has argued that it will continue enforcing the law; it will just stop defending it in court. But stopping its defense in court makes the law virtually unenforceable.
When the president empowers himself to interpret law, he conveys powers upon himself that belong to the courts. This is an unconstitutional violation of the separation of powers. If the Supreme Court was to rule DOMA unconstitutional, then the Obama administration would be within its right to stop enforcing the measure. Likewise, if Congress passed a bill repealing DOMA, Obama could then sign the repeal measure into law. But a presidential decision to simply stop defending a law sets a very dangerous precedent.
What if a future president decided not to defend civil rights laws in the courts? Or what if a future president decided not to defend the health care reform law? When a president takes it upon himself to stop defending a federal law he doesn’t like, without respect to the checks and balances mandated by the Constitution, he takes the country one step closer to that slippery slope toward tyranny.
AMERICAN HISTORY UNCUT
Exploring facts and exposing myths in the quest for liberty