Correction below: The New Republic is most definitely not The National Review. I was thinking of an entirely different article. My mistake.
Crossposted at Equality Loudoun.
Frank Wolf thinks that the Justice Department should still be defending Section 3 of DOMA in court:
“Congress has a reason to be concerned” over the Justice Department’s decision not to defend the Defense of Marriage Act (DOMA), Rep. Frank Wolf (R-VA) said Tuesday.
Wolf told Attorney General Eric Holder at an appropriations subcommittee hearing that the Obama administration had abandoned its duty.
“It almost looks like a political decision,” Wolf said. “I think it’s inappropriate and it’s a bad decision.”
I can understand why he’s concerned. It means that if anyone is going to argue in defense of DOMA, it will have to be Congress. That will be an uncomfortable position to be in.
First, let’s clear up any lingering misconceptions resulting from uninformed statements by people who should know better. First, the Obama administration has not stopped enforcing DOMA, nor has DOMA been ruled unconstitutional; second, the decision to no longer defend it only concerns Section 3 of DOMA (the provision that denies federal benefits to same sex couples legally married under state law), not the entire act; third, an executive branch decision to no longer defend a law is not unprecedented; and fourth, the decision does not represent a change in the president’s views (he has always opposed DOMA), only a change in circumstance with regard to the cases under court review.
That change in circumstance is this: in previous cases in which the Justice Department has defended DOMA, the level of scrutiny had already been established by precedent in those courts. In these new cases, it has not. Therefore, anyone in the position of defending the law in these cases must first establish that the lowest level of scrutiny – rational basis review, which basically means that the government doesn’t have to come up with a reason for the discrimination in question – is the appropriate one. What the Justice Department is saying is that they don’t think that can be done anymore, given the changes in the legal landscape since the passage of DOMA in 1996 – but that Congress is welcome to try to do so if that is what they want to do.
What Congress will be required to argue, in order to establish that a rational basis standard is fine and dandy, and that heightened scrutiny is NOT warranted, is the following (adopting the Supreme Court language cited in the Justice Department memo:
1. That gay and lesbian people have NOT “suffered a history of discrimination”;
2. That gay and lesbian people do NOT “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”;
3. That gay and lesbian people do NOT constitute a group that “is a minority or is politically powerless”; and
4. That the characteristics distinguishing gay and lesbian people as a group have some important “relation to legitimate policy objectives or to an individual’s ‘ability to perform or contribute to society'”
You can see how uncomfortable it would be for anyone wishing to be taken seriously as a legislator or political leader to openly support these arguments. In fact, the proponents of Proposition 8 in California had a hard time finding witnesses to make them at all. Linda Hirshman, observing the pitiful failure of “culture war” arguments to stand up to the unblinking logic of cross examination, advises the Republican majority not to walk into this trap. And as one of those cross examiners, David Boies tells us, “the witness stand is a very lonely place.”
Since Mr. Wolf believes so strongly that the Justice Department should be making these ridiculous arguments, I can only conclude that he would be willing to make them himself. The ultimate irony has to be that his loooooong record in Congress is one that has contributed to the very conditions that make the arguments he feels compelled to make so patently ridiculous. He has for over thirty years voted in a way that codifies systematic discrimination against gay and lesbian people. He has opposed every bill that would end such discrimination, and thereby demonstrate the “political power” of the gay community. If opposition to allowing openly gay soldiers to serve in our military doesn’t define gay and lesbian people as a discrete group singled out on the basis of a distinguishing characteristic, I don’t know what would. Likewise, I can think of nothing that would demonstrate political powerlessness more than our inability to pass the Employment Non-Discrimination Act.
Walter Dellinger has a piece in the National Review New Republic – a publication which could hardly be more conservative – in which he suggests this: “Those who have criticized the decision not to defend DOMA…have given too little consideration to what a brief defending the law would have to say, and what a brief declining to defend could say instead.” If Frank Wolf and others inclined to defend DOMA choose to continue down this misguided path, (to paraphrase Mr. Dellinger) history will not be kind.
Right. As already pointed out it’s not unprecedented for the Executive branch to decline to defend a law.
Here’s that whopper again, from Boehner’s statement yesterday:
That’s the second time he’s repeated this lie. I guess he assumes the American people are too stupid to realize that the president can’t decide a law’s unconstitutionality unilaterally, and that of course, that’s not what happened.
“Within its rights,” yes, but not obligated by law. I agree with Jim; this should be fun.
The Executive has an obligation to enforce the law. There never has been an obligation to defend a legal challenge to the law.
Just an FYI.
Update: This was not unexpected.
The Bipartisan House Legal Advisory Group, on a 3-2 party line vote, has directed the House General Counsel to defend DOMA in court.. We now await the amicus briefs, and to see who they retain for counsel. This should be good.
A joint statement from a group of Congressional Democrats reads in part:
True, that. And there’s a big chunk of the Tea Party that takes a dim view of DOMA for that very reason. Plus there’s the whole “what about jobs” issue. They must be feeling a little grim right now.
That “small part of the populace” includes our Congressman, unfortunately. I hope he and his base talk about this a lot.
It is the law, and that’s why there’s never been any question about enforcing it (Newt Gingrich’s puzzling outburst notwithstanding), and why it’s the correct course, IMO, for Congress to go forward with the Advisory group – I think there’s a legal duty to at least do that. It’s the role of the courts to rule it unconstitutional, so there has to be a mechanism for the courts to do that. On the other hand, I don’t believe it’s true that the only legal option is to mount a defense. If it just isn’t possible to mount a defense without making arguments that are clearly invalid, I don’t see how either the Executive or Legislative branch could be legally obligated to make false statements. The court could reach the same conclusion by default, if no one is able to defend it. I’m not a lawyer, but that’s my lay understanding. Maybe someone can clarify this?
The reason that we know the Obama administration didn’t come to this conclusion “for their base” is that they could have declined to defend the law before now if they were going to do it for that reason. Some people argued that they shouldn’t have defended it from the beginning of his term, nor should they have defended DADT. I disagree, for the reason you have stated, and they have defended these laws for that reason. Unless there is an extraordinary circumstance, such as honestly being unable to mount a credible defense, it’s the JOB of the Executive branch to defend laws passed by Congress, even including ones they think are unconstitutional. Thinking a law is unconstitutional, and being in a position in which they are unable to credibly argue otherwise, are two different things. That would also be true in your hypothetical case – just thinking that Roe is unconstitutional would not be enough.
I agree with you that only a small part of the populace cares about these issues in this economy. I think we’ve seen the tide turn on the capacity to use them as voter turnout mechanisms – and that’s my point. This isn’t going to help the GOP win votes.
Two things, folks:
David, yes,”they don’t have any choice but to defend DOMA” but not simply because of their “base”. It could as easily be argued that one of the main reasons the Obama admninistration is doing this is for THEIR “base”.
Simple fact is it’s their job to defend the law, and like it or no, right now it’s the law.
Switch things around a bit, and imagine Roe v. Wade challenged under a Republican administration, which chooses not to defend it because THEY consider it unconstitutional.
Guess what? It would be their JOB to do so, because whether they like it or not, it is the law.
Second, and as a sideline, no matter how opinions are trending on social issues, I don’t think they are the number one for a majority of people (on both sides of a variety of issues) in this economy. Just my opinion.
Actually, I think they are getting that message – otherwise, there wouldn’t be such consternation about being in the position they’re in. They know they will be forced to make embarrassing arguments in court, which is why there’s been all the chatter about this being a “political” decision. While the Obama administration wouldn’t have made such a decision arbitrarily, the timing of the new cases that made it necessary couldn’t be worse for Republicans. On the one hand they don’t have any choice but to defend DOMA; failing to do so will alienate a significant chunk of their base. On the other hand, what happened to jobs?
So it looks to me like Boehner & Co. are treading as softly as they can, under the circumstances:
He’s not even claiming that DOMA is constitutional, he’s saying the courts need to decide – exactly the position of Obama and the DoJ (the president hasn’t “determined” anything). The GOP, of course, could decline to defend the law on the same grounds, that there’s just no legally tenable argument for it, and besides, “Americans want their leaders to focus on jobs and the challenges facing our economy.” But this approach is by the book, and gives the utmost respect to the process. They are accepting their duty to go through the motions so that the courts can decide. They just don’t like it, and who can blame them. The Holder letter basically says to them, “Look, it’s the delusional wing of your base that still insists this is defensible, so you do it.”
Then, hilariously, there is this: The American Family Association’s own attorney admitting that Section 2 of DOMA is unconstitutional. I wonder if he will still have a job tomorrow.
He’s on the wrong side of history on a lot of things. DOMA happens not to be one of his bread-and-butter issues, but transportation sure is, and he’s on the side of cutting funding for Metro.
It amazes me that the GOP, and Wolf in particular, aren’t getting the clue about the way the country is trending on social issues.