Obama’s Dive on DOMA
Michael Ejercito
Obama’s Dive on DOMA
February 23, 2011 2:53 P.M.
By Ed Whelan
Some quick comments on today’s news that President Obama has
determined that the Defense of Marriage Act is unconstitutional and
has ordered the Department of Justice to stop defending (or at least
pretending to defend) DOMA in court:
1. As I’ve pointed out in various posts, the Obama administration has
been sabotaging DOMA litigation from the outset. Today’s action at
least has the modest virtue of bringing that sabotage out into the
open.
2. Attorney General Holder has the gall to claim to be acting
consistent with DOJ’s “longstanding practice of defending the
constitutionality of duly-enacted statutes if reasonable arguments can
be made in their defense.” There are lots of reasonable arguments in
defense of DOMA. The Obama administration has abandoned those
arguments for purely political reasons.
3. Holder says that the Obama administration “will continue to
enforce” DOMA. But it is logically incoherent for the Obama
administration to refuse to defend DOMA and to continue to enforce it.
The obvious explanation for this incoherence is political: Obama
doesn’t have the guts to take the political heat for not enforcing
DOMA, but he’s hoping that his refusal to defend it will lead to court
rulings that he can hide behind.
oooooooo
It was political pressure from gay activist groups that led to this
decision.
Note the flak the administration got in its brief in Smelt v. United
States (a brief that had argued that sexual orientation discrimination
is only due rational basis scrutiny per High Tech Gays v. Defense
Industrial Security Clearance Office).
Finally,. even if heightened scrutiny applies, the legislative summary
and analysis of DOMA itself provides a compelling government interest.
The summary mentioned that the Supreme Court spoke of the “union for
life of one man and one woman in the holy estate of matrimony.” Murphy
v. Ramsey, 114 U.S. 15 at 45 (1885)
Reading further into Murphy, the Court also noted that legislation
seeking to establish a “free self-governing commonwealth” on this
basis was “necessary” and “wholesome”. No doubt this was included in
the summary to provide a ready defense against constitutional
challenges. And far from ignoring that quote in subsequent decisions,
the Supreme Court used that quote to reach holdings in Davis v.
Beason, 133 U.S. 333 at 344, 345 and United States v. Bitty, 208 U.S.
393 at 401. The government, had in fact, cited Murphy in its brief for
its motion to dismiss in Bishop v. Oklahoma, Case No. 04-CV-848K(J), a
constitutional challenge against DOMA and Oklahoma’s Question 711.
(Brief of the United States to Dismiss at 5, Bishop)(The case is still
pending in NDOK)
Thus, due to political pressure from homosexual fundamentalists,
President Obama abandoned a longstanding argument used by the Justice
Department since the Carter Administration.
In Ex Parte Bain, the Supreme Court ruled:
It is never to be forgotten that, in the construction of the language
of the Constitution here relied on, as indeed in all other instances
where construction becomes necessary, we are to place ourselves as
nearly as possible in the condition of the men who framed that
instrument.
121 U.S. 1 at 12 (1887)
The idea that homosexuals are a class entitled to greater scrutiny in
equal protection claims than, for example, horseback riders, canal
operators, or carpet cleaners, is not only inconsistent with what the
Fifth Amendment means, but was rejected by every appellate court that
decided the issue. See Cook v. Gates , 528 F.3d 42 (1st Cir. 2008)
Thomasson v. Perry , 80 F.3d 915 (4th Cir. 1996), Ben-Shalom v. Marsh,
881 F.2d 454 (7th Cir.1989), High Tech Gays, 895 F.2d 535 (9th Cir.
1990), Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989),
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994)