April 25, 2011
On February 23, 2011, based on a recommendation from Attorney General Eric Holder, President Obama ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act in federal courts.
The move quickly angered conservatives, claiming that it was not in the President’s authority to pick and choose which laws to defend.
However, there is no law that explicitly compels the Executive to defend federal laws in court; additionally, since Obama has stated that the Executive will continue to enforce the law until either the legislature or the courts overturn it, he is technically not neglecting his constitutional duties as the executive.
Nonetheless, the government’s abandonment of DOMA’s defense is effectively asking for a judicial overturn of the law.
In response, House Republicans have declared that they will take up defense of the law in court, paying a private firm up to $520 an hour.
What exactly does DOMA do that would compel House Republicans to defend it, and spend potentially millions on legal fees?
Actually, DOMA doesn’t really do much.
The relatively short law first allows individual states to refuse to recognize same-sex marriages from other states, and it defines marriage for the purposes of federal law as between two individuals of the opposite sex.
The power to grant marriages is still retained by the states, so DOMA simply vanishing from existence would not lead to a large influx of same-sex marriages, nor would it invalidate laws in any of the 45 states that currently ban same-sex marriage.
It would, though, allow married couples in state-sanctioned same-sex marriages to receive marriage-based federal benefits like Social Security survivor benefits, health benefits, and the right to file taxes jointly.
Specifically, the absence of the law’s provision allowing one state to refuse to recognize another state’s same-sex marriage could prove problematic; it could and probably would prompt suits seeking to compel that recognition under the Constitution’s Full Faith and Credit Clause.
While there is no Supreme Court precedent directly on the issue, precedent on other family law matters such as child support and same-sex adoption seems to suggest that the marriages would be recognized.
If that were to happen, the Justice Department’s decision would effectively legalize same-sex marriage nationwide, since all states would be forced to recognize marriages from states that allow the practice.
The timing of the decision seems strategic.
There are at least ten ongoing suits regarding DOMA’s constitutionality, with two 2010 decisions in Massachusetts declaring the law unconstitutional.
If the appeals court rules the same way, which looks even likelier since the Justice Department’s withdrawal, it’s heading for the Supreme Court.
Regardless of how much House Republicans spend to defend it, the Justice Department’s withdrawal from the case in itself would say a lot to the Court about DOMA’s constitutionality (or lack thereof).
If the Court does void DOMA, the implications reach beyond the issue of same-sex marriage.
With DOMA’s defeat, the Executive would have overturned a federal law simply by refusing to defend it in court on the grounds that it believed the law unconstitutional.
Obama’s strategy may backfire in allowing a Republican successor to do the same thing.
What do you think? Are DOMA’s days numbered? Will the Supreme Court uphold the law? Could the same thing happen to Obama’s healthcare law?
To view the Department of Justice’s official press release, click here.