Last Week U.S. Attorney General Eric Holder announced that the Obama Administration would no longer defend Section 3 of the Defense of Marriage Act (DOMA). DOMA was passed in 1996 by a Republican majority in Congress and signed into law by former President Bill Clinton in response to a wave of culture wars and anti-gay sentiment fostered by right-wing conservatives and the Republican Party.
At the time there were no states with laws protecting civil marriage between gay or lesbian couples. Although it was widely believed that a state supreme court case in Hawaii (Baehr v. Miike) would lead to that state legalizing same-sex marriage, it was not until 2003 that the first state legalized same-sex marriage after the Massachusetts State Supreme Court (Goodridge v. Dept. of Public Health) ruled that denying same-sex couples marriage licenses violated the equal protection clause of the state constitution. Since then California, Connecticut, Vermont, Iowa, and the District of Columbia have followed reached the same conclusion, and more states are following this constitutional trend with civil marriage or civil unions.
Holder’s announcement comes as a surprise and a controversy for two reasons. First, the Obama Administration has been defending the constitutionality of DOMA the past two years in numerous cases challenging the constitutionality of that law. Second, there is a constitutional tradition for the Executive to defend laws passed by Congress in order to let the courts decide the constitutionality of those cases. This constitutional tradition is apparent in the doctrines of the “separation of powers” and “checks and balances,” the idea that each branch of government has specific constitutional duties to make laws (Legislative), enforce laws (Executive), and interpret laws (Judicial). Although there is no specific law requiring the Attorney General to defend the constitutionality of laws in the courts, this principle is generally respected as part of this tradition in order to keep political differences from eroding constitutional duties.
The announcement was made, According to Holder, the decision to stop defending Section 3 of DOMA after President Obama and the Justice Department conducted a thorough review of the law’s constitutionality, and reached the conclusion that it cannot continue to defend that part of the law, which holds that the federal government may not recognize same-sex marriages anywhere, including states where they are legally permitted.
Last Friday, Speaker of the House John Boehner (R-OH) quietly announced the formation of an “advisory group” comprised of congressional members who would step in to defend this part of the law in the courts either by asking them to appoint it as a party in the case or filing briefs as an interested observer. These legal maneuvers and political posturing raise an interesting question. Who is responsible for cleaning up this constitutional mess?
Conservatives, Republicans, and even some Democrats are crying foul, claiming that Obama’s decision is a breach of constitutional responsibilities, and that it is for the courts to decide the constitutionality of DOMA. Never mind that when the California State Supreme Court ruled that Proposition 8 violated the equal protection clause of its state constitution, conservatives and Republicans alike cried foul, claiming that “activist” courts were overriding the will of the people. The reaction to Obama’s decision in DOMA is therefore more hypocrisy from conservatives and their Republican supporters who do not care about the constitutional issues on their own merits. The only thing they care about is whether the constitution serves their bigotry and homophobia, and they will use and misuse constitutional principles in any way they see fit as long as their religious and personal agendas are satisfied. If there is a constitutional mess then Obama’s decision brings clarity to it, because it is Republicans and their religious agenda that made it in the first place. They are the ones who chose to pursue a legislative agenda that is so clearly unconstitutional in the first place. American constitutional history can be summed up in one phrase: majority rules with minority rights. In this respect, the shameless attempt to deny gay and lesbian citizens equal protection of the law by encouraging and permitting majorities to legislate their civil rights away has never been and will never be consistent with the constitutional principles on which this country is founded.
Of course, there is a principled argument that the Executive has a constitutional duty to uphold the law of the land whether it agrees with the law or not. This is certainly a legitimate expectation and one that should be encouraged, especially in this deeply divisive period of partisan politics where zero-sum mentalities have prevailed over the common good. However, every rule admits of exceptions, and in this case the stakes are extraordinary. The issue of civil and political equality for gays and lesbians is a political hot-potato for every branch of government that none will take responsibility for. Anti-constitutional majorities will not voluntarily set aside their homophobia to recognize the principle of equal protection, elected officials are happy to appease them, and courts are reluctant to intervene and encourage the perception of judicial activism. The social, economic, and political consequences of this constitutional stalemate means, in effect, that the dominant majority in the country accepts a hierarchy of citizenship in which gays and lesbians are second-class citizens. This is wrong.
President Obama’s decision not to defend Section 3 of DOMA is entirely reasonable when viewed in this wider frame, but even in the details his decision is less controversial than the media hype and soundbites admit. Consider the difference between Sections II and III of the law. There is at once a constitutional contradiction evident in the intent and text of the law, while Obama’s decision is a deft compromise intended to deflate that contradiction so that the Justice Department can fulfill its duty to enforce the law. The relevant parts of DOMA read as follows:
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
Section II of DOMA defers to the constitutional principle of states rights, allowing individual states to determine whether they will acknowledge the legal standing of same-sex marriages from other states. This part of the law raises direct and complicated issues about the Full Faith and Credit Clause of the Constitution, which traditionally plays a role in resolving disputes between states over the similarity and continuity of laws. Without this form of adjudication, for example, all those couples descending on Vegas to be married in Sin City would have to get remarried in their own respective states, and couple married in one state would have to remarry in other states in which they lived. However, in the rush to serve this anti-constitutional agenda many states have amended their state constitutions either to recognize “marriage” only between a man and woman or to prohibit the recognition of marriages and civil unions of same-sex couples from other states. (Currently, 29 states have constitutional amendments defining marriage between a man and woman.) The courts will therefore have to resolve disputes between states where the legal standing of same-sex marriages is in question, and Obama has wisely chosen to continue defending this part of the law.
Section III of DOMA denies this principle of states rights, however, by refusing to allow the federal government to recognize even the legitimate marriages of same-sex couples from states where they have legal standing. In addition, DOMA places the federal government in new legal territory because marriage and family law has almost always been left to the purview of states.
By enacting Section III of this law, the intent of the legislators is made apparent: to deny same-sex couples any constitutional standing whatsoever, even in states where there marriage is legally recognized. This creates a legal limbo for gay and lesbian citizens, as well as those states who have rightly chosen to recognize the equal protection of marriage rights for their gay and lesbian citizens. The law places the federal government in the position of denying both equal protection of the law to gay and lesbian citizens who are legally married, as well as denying the principle of states right to those states that permit same-sex marriage.
Rather than refusing to defend DOMA in its entirety, which would amount to gross negligence of constitutional duty, the Obama administration correctly anticipates that this part of the law is prima facie unconstitutional. Moreover, this decision has legal precedent in its favor. In a federal district court in Boston in 2010, Judge Joseph Tauro has already ruled in two cases (Gill v. OPM and Massachusetts v. U.S. Department of HHS) that Section III of DOMA violates the equal protection of the law found in the Due Process Clause of the Fifth Amendment, as well as violates the Tenth Amendment, supposedly because it exceeds the authority of Congress under the Spending Clause.
The legal issues are technical but the writing of history is on the wall. Laws that deny gay and lesbian citizens equal protection, whether passed by homophobic majorities, anti-constitutional legislators, or written into state constitutions, cannot and will not pass constitutional muster. One only has to read Romer v Evans (1996) and Lawrence v Texas (2003), which struck down Colorado’s Amendment 2 and all state laws criminalizing sodomy, to reach this conclusion. President Obama’s decision not to defend Section III of DOMA is therefore consistent with both law and tradition. Anti-gay laws and amendments are deeply, uncontroversially, and politically motivated attempts to deny gay and lesbian citizens equal protection under the law, and they encourage a long-standing and heinous animus against gays and lesbians. This is an animus that motivates much of this constitutional mess and continues to motivate many citizens, elected officials, and judges from upholding their sworn duties to preserve and protect the Constitution. It is an animus that is contrary to the Constitution, and therefore cannot be constitutionally defended.