Obama gets out of way of gay marriage

Stops defense of federal law

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“The administration claims that it has a duty to defend the laws that are on the books. We simply do not agree,” Mr. Solmonese said in an e-mail to members after the Jan. 13 brief was filed. “At the very least, the Justice Department can and should acknowledge that the law is unconstitutional.”

House Minority Leader Nancy Pelosi, California Democrat, said in a tweet that she was “thrilled” with the decision. A spokesman for House Speaker John A. Boehner, Ohio Republican, asked why the president had chosen to “stir up a controversial issue” in the middle of a budget crisis.

While it was sudden, Wednesday’s move did not come out of nowhere. Opponents of same-sex marriage had grown increasingly frustrated with the administration for what they called its underzealous defense of DOMA and its omission of key arguments.

In a brief filed Jan. 13 in defense of DOMA at the 1st U.S. Circuit Court of Appeals, the Justice Department states that “the administration supports repealing DOMA,” but that the department must do its job to defend the law “as long as reasonable arguments can be made in support of their constitutionality.”

Brian Brown, executive director of the National Organization for Marriage, told The Washington Times recently that he suspected the administration of purposely tanking its case.

“They purposely avoid arguments that are winning time and time again in court,” he said. “Even scholars on the other side of this issue have said, ‘What is going on here is wrong.’ Anyone who cares about constitutional government should be very concerned about what’s happening in the DOMA case.”

The administration’s decision also raises questions about the executive department’s latitude to opt out of defending laws that the administration may not support.

“Typically, when a law is challenged, the government has a duty to defend the law, and typically they do so with the most vigorous possible defense,” said Jim Campbell, a lawyer with the conservative Alliance Defense Fund. “In this case, we’ve seen executive branch officials refuse to do so.”

Even before the Justice Department’s withdrawal from the case, advocates for traditional marriage had turned to Congress in an effort to persuade the new Republican-majority House to intervene in the case. If the House agrees, then the Office of House Counsel can file its own brief in support of DOMA.

“There needs to be a defense, because otherwise you don’t have separation of powers — you have one branch being able to trump the other. And that’s wrong,” Mr. Brown said.

The federal DOMA case mirrors events in California where Jerry Brown, attorney general at the time, refused to offer a defense of Proposition 8 in the face of a lawsuit. The refusal also produced legal fallout Wednesday related to similar social-conservative complaints about chief executives not defending the laws.

In a brief filed Wednesday, lawyers Ted Olson and David Boies asked that the 9th U.S. Circuit Court of Appeals allow gay marriages to go forward in California during the months of delay while a dispute over standing created by Mr. Brown’s refusal to defend the law is resolved before the California Supreme Court.

Proposition 8, which upholds marriage as an institution between one man and one woman, was approved by voters by a margin of 52 percent to 47 percent in 2008. In the face of Mr. Brown’s failure to defend the law, the Proposition 8 campaign hired its own legal counsel to defend the measure.

A federal judge in California declared Proposition 8 unconstitutional in 2010. The Proposition 8 campaign has filed an appeal with the 9th Circuit, which stayed the trial judge’s decision. However, Mr. Olson and Mr. Boies argued that the campaign has no standing to appeal the decision. The California Supreme Court agreed Feb. 16 to consider the issue of standing, but a decision is unlikely before the end of the year.

That, Mr. Olson and Mr. Boies argued Wednesday, created an “intolerable” delay in granting their clients a right to marry. Thus, they argued, the 9th Circuit should lift its stay and allow gay marriages to proceed in California.

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