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February 24, 2011

Obama's Unjustifiable DOMA Decision

Setting aside whether the President can choose not to defend in the courts laws that he believes to be unconstitutional and still meet his obligations under the Take Care Clause, it seems to me there's a more fundamental problem with his DOMA decision yesterday. He has stated that he (and the Attorney General) believes that DOMA section 3 is unconstitutional and therefore indefensible. But he has instructed Executive agencies to nevertheless continue to enforce this so-called unconstitutional law.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

This split-the-baby approach is unjustifiable. The President has no obligation to enforce unconstitutional laws under the Take Care clause; in fact, I'd say he's obligated not to enforce unconstitutional laws and that's exactly what prior Presidents concluded. President Obama's waffling---enforce it, but don't defend it---leads to the same eventual outcome, but only by needless delay and wasteful litigation.

For example, if a gay federal employee who is lawfully married to another dude were to apply tomorrow to add his spouse to his health insurance or seek to file their federal income taxes jointly, OPM and IRS would reject those filings under DOMA section 3. To get relief, the employee would have to hail these federal agencies into court, wherein the DOJ would promptly turn against its own client agencies and tell the court that their actions were indefensible.

How is that a good plan? Well, it's a good plan if one wants to finally see the courts extend heightened scrutiny to cases of discrimination against gays and lesbians. To date the Supreme Court has been mum about just how much justification the federal government needs to have to discriminate against gays. Drew wrote about this issue in the context of the Prop 8 case; note that Gov. Schwarzenegger and AG Brown did the same thing as Obama and Holder: they continued to enforce Prop 8, even as they told the courts it was indefensible. How predictable then that the district judge concluded that discrimination against gays should be subjected to heightened scrutiny.

It is historically noteworthy that Obama announced his DOMA decision yesterday. The governor of Hawaii also signed that state's new civil unions law yesterday. It was a Hawaii judicial decision in 1993 that the state must show a compelling interest, that is pass heightened scrutiny, in prohibiting gays from marrying. The nationwide fear that this decision would soon lead to legalized gay marriage culminated in DOMA in 1996.

Related: The Maryland legislature is poised to legalize gay marriage. It would join New Hampshire and Vermont in coming to gay marriage via the legislature and not the courts. As in the other places to legalize through the legislature, Maryland's law contains religious conscience protections for churches, religious organizations, and individual religious objectors.

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posted by Gabriel Malor at 07:41 AM

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