- The Washington Times - Wednesday, February 23, 2011

The Obama administration announced Wednesday that it had withdrawn its legal support for the federal Defense of Marriage Act, stating that the law is unconstitutional and therefore the administration is under no obligation to defend it.

Attorney General Eric H. Holder Jr. said in a statement released Wednesday that President Obama has decided that his administration will cease its defense of DOMA’s Section 3, which defines marriage for federal purposes as a legal union between one man and one woman.

Even before Wednesday’s decision, social conservatives were suspicious of the Obama administration’s willingness to give its best effort, as the executive branch tasked with defending the laws Congress enacts, in lawsuits challenging the Defense of Marriage Act.

The act, signed into law by President Clinton in 1996, also says that no state is obligated to recognize same-sex marriages contracted in other states.

“The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Mr. Holder said. “The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

Like Hillary Rodham Clinton and most of the other leading Democrats who ran for the presidency in 2004 and 2008, Mr. Obama has said he opposes DOMA and federal and state constitutional amendments on marriage, but never specified that he favors same-sex marriage. He has said that his religion defines marriage differently and that his views on the subject are “evolving.”

White House spokesman Jay Carney said Wednesday that the president was “grappling” with the issue and that it was important to “make the distinction between his personal views, which he has discussed, and the legal decision that was made today.”

Critics said the announcement makes it clear that the Obama administration has finished evolving and that it clearly favors legalization of same-sex marriage.

“The president has finally come out of the closet on gay marriage,” said Andy Blom, executive director of the American Principles Project. “After months of obfuscation and wishy-washy answers, the president has made it clear that he has no regard for the voice of the people, who have shown in election after election that they support traditional marriage.”

Thirty states have constitutional amendments defining marriage as the union of a man and a woman, and five states and the District of Columbia have legalized same-sex marriage. Maryland is expected to become the sixth such state soon.

The decision effectively throws the defense of DOMA into the lap of Congress, which can instruct its own attorneys to defend federal laws. Mr. Holder said he had informed members of Congress of the decision so that “members who wish to defend the statute may pursue that option.”

Supporters of traditional marriage immediately called on the Republican-majority House to intervene in the DOMA lawsuits.

“With this decision, the president has thrown down the gauntlet, challenging Congress,” said Family Research Council President Tony Perkins. “It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president’s neglect of duty.”

The move was a huge victory for supporters of same-sex marriage, who backed the president in his 2008 election campaign but have criticized the administration for its defense of DOMA in the face of recent lawsuits.

Joe Solmonese, president of the Human Rights Campaign, called it a “monumental decision” and urged Congress to “not waste another taxpayer dollar defending this patently unconstitutional law.”

“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.

“The right to marry is not an abstract principle any more than might be said about the right to vote, the right to speak and the right to practice one’s religion,” Mr. Olson said. “Every day our fellow citizens are denied their most basic civil rights that their friends and neighbors freely enjoy. … [T]hat discrimination inflicts countless injuries.”

A precedent exists for attorneys general refusing to defend state laws if they think those laws are unconstitutional. It’s just that it’s a “very, very rare thing,” said ADF’s Mr. Campbell.

“We’re talking about hundreds of years of history, 50 states, and there have only been a handful of instances,” he pointed out.

One such example emerged in Wisconsin in 2009. Attorney General J.B. Van Hollen, a Republican, refused to defend a recently passed domestic-partnership law, saying he thought it violated the state’s constitution.

In response, Gov. James E. Doyle, a Democrat, hired outside counsel to defend the law in his place. No such counsel was retained by California Gov. Arnold Schwarzenegger to defend Proposition 8.

“The critical, critical difference is that Wisconsin [officials] went out and hired a private law firm to take the case,” said Mr. Campbell. “They didn’t leave the law undefended. They hired independent counsel, which isn’t happening here.”

Rick Jacobs, president of the Courage Campaign in Sacramento, Calif., argued that Mr. Brown’s refusal to take the case doesn’t leave Proposition 8 defenseless. The voters always have the option to boot the governor and attorney general out of office, or even launch a recall election, if they disagree with their decisions.

Since Mr. Brown, a Democrat, was elected governor in November, California voters must feel reasonably comfortable with, or at least not strongly opposed to, his decision to take a pass on defending Proposition 8, Mr. Jacobs said.

“People could have voted for [Republican gubernatorial candidate] Meg Whitman,” said Mr. Jacobs. “They didn’t. When you look at this, you see that there are checks and balances in place.”

Mr. Jacobs insists he would feel the same way even if the situation were reversed, and a conservative governor and attorney general refused to defend a ballot measure legalizing same-sex marriage.

“Yes, I would. I don’t think these [questions] should be on the ballot to begin with. I don’t think it’s very American to vote on each other’s rights,” said Mr. Jacobs. “In that scenario, that governor and attorney general would be subject to the same checks and balances.”

Count the National Organization for Marriage’s Mr. Brown among the skeptics.

“That’s absurd. If the shoe were on the other foot, Rick Jacobs would not be saying this,” he said. “This is not about abiding by the law, this is about getting the result they want even if it means abridging constitutional government.”