Unsurprisingly there have been many misconceptions about the Defense of Marriage Act and the president's decision to stop defending it in court. Most of the inaccuracies stem from conservative disapproval of the president and of gay people, and not from any serious worries over the law. But there are some people who are legitimately confused. I thought I'd list some of the bigger ones and explain them.
First of all, what DOMA isn't: The Defense of Marriage Act doesn't "ban" gay people from getting married. It's not a marriage ban of any sort. It doesn't stop the rate of states that are beginning to accept marriage for gays and lesbians nor does it have an effect on state laws. DOMA involves federal laws which mention the word "spouse." DOMA requires that for purposes of federal law, the definitions of 'marriage' and 'spouse' refer to opposite sex couples only. So when a state chooses to legalize gay marriage, DOMA serves to prevent the federal government from recognizing those unions and affording those marriages the 1,138 benefits that straight married couples get. That is section three of DOMA. It's a law that unconstitutionally hurts gay people out of disapproval of us. It makes us pay higher taxes while denying us spousal benefits.
Section two says that no state has to recognize same sex marriages of other states.
And that's the whole act.
This is important because it's proof that, contrary to what John Boehner says, it's not a "controversial issue that sharply divides the nation." It could feasibly be argued that marriage itself sharply divides the nation, if one disregards the fact that a plurality of Americans support same sex unions, and in some polls, support is finally higher than opposition. It may not be over 50 per cent yet but even marriage itself is not that controversial.
But as I said, repealing DOMA doesn't affirm gay marriage. It leaves marriage up to the states. That's been the stated position of the Democratic Party since as far back as 2000, four years after DOMA was passed. It's entirely misleading to scare the American people into thinking that the government stopping its defense of an unconstitutional law is extreme or controversial and we'll be doomed to gay marriage everywhere. I'm for it. I'd love to see it happen. I'd be happy to have gay marriage in all fifty states. Getting rid of DOMA unfortunately will not accomplish that goal. That's just a fact. Trying to act like keeping DOMA in place is some big affirmation of heterosexual marriage is wrong.
Secondly, the Obama administration has decided to stop defending section three in court. They have notified Congress of this, as the law requires. Congress may choose to defend it if they want. But, several Republicans, and Fox News, have claimed that the Obama administration has decided not to enforce the law. This is untrue. As AG Holder's letter to Speaker Boehner states:
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
Whether he should continue enforcing a law that is unconstitutional is another matter entirely, and legal scholars differ on the question. But people need to know that this (stupid) law will be enforced for the foreseeable future.
Third, an administration deciding not to defend a law in court is rare but not unheard of. It's not an unconstitutional abuse of executive power, as some have claimed. In fact, the Supreme Court isn't even likely to make a big deal out of the decision to stop defending it in court, seeing as the current Chief Justice had urged Bush 1 not to defend a law in court.
And there's this:
This approach is not unprecedented. In 1943, Congress passed a law prohibiting the payment of salaries to three particular government employees. Arguing that the law was unconstitutional, the employees sued and won in claims court. The solicitor general asked the Supreme Court to review the lower court’s decision, but he also told the justices that the administration agreed with the original ruling; the court ultimately struck down the law.
That case and others like it provided a precedent for President Bill Clinton in 1996 both to comply with a law requiring the military to discharge service members who had H.I.V., and at the same time inform the courts that he found it to be unconstitutional. Thanks in part to support from the military, Congress repealed the law before litigation ensued.
Fourth, declining to defend an unconstitutional law has never been an impeachable offense, so Newt Gingrich is wrong to claim that President Obama can (or should) be impeached over his decision.
Speaking with Newsmax, the former House Speaker and oft-rumored 2012 presidential contender said that the Obama administration's decision to no longer defend DOMA in federal court is a "a violation" of President Obama's "Constitutional oath and clearly it is something which cannot be allowed to stand."
It actually doesn't violate the oath to defend the Constitution, because unconstitutional laws offend the Constitution. Not to mention that violating the presidential oath is not an impeachable offense by any stretch.
If it were impeachable to refuse to defend a law, there wouldn't be a law requiring the DOJ to inform Congress when they choose to stop defending an unconstitutional law. It's permissible, even though it's rare. In fairness, Gingrich knows this and walked back his statement later.
Fifth, this is not the health care debate. As I've said elsewhere:
In short:
if Republicans win the presidency they will choose independently not to defend the individual mandate. They don't need Democrats to do something wrong for them to decide this. They don't want to defend it so they won't.
The last Republican administration wrote "legal" memos giving them extra powers and changing the meanings of laws without even dealing with the courts. They'll do what they want and that's fine. Part of politics.
And as my lawyerfriend says:
[T]here must be some basis
Obama is saying here that he believes the standard of constitutional scrutiny applicable to classifications based on sexual orientation is not ordinary rational basis review. Holder laid out the legal rationale for this in detail in his letter to Boehner informing him of the shift in position. Holder drew on Supreme Court precedents like Lawrence v. Texas and Romer v. Evans in concluding that laws that discriminate against gays are not subject to simple rational basis review. He concluded DOMA can't survive heightened equal protection scrutiny.
In other words, the administration isn't just making an arbitrary determination that DOMA is unconstitutional. It's making an educated legal judgment that the statute does not have sufficient justification to survive the level of constitutional scrutiny that Supreme Court case law indicates would be applied to it.
Challenges to the PPACA are generally based on Congress lacking the power to pass it under the commerce clause of the Constitution. But there's virtually nothing in modern commerce clause jurisprudence that would support that view, and I say this as a lawyer, FWIW. So a refusal to defend the PPACA would not have the same basis as a refusal to defend DOMA.
Of course, as others have pointed out, the Republicans will probably refuse anyway. They just won't care whether they have a legal rationale or not.
And lastly, Ron Paul doesn't even make any sense. He's mad at the Obama administration because he supports Section Two of DOMA. Section Two isn't at issue in any litigation. Sure, if the courts strike down DOMA, Section Two goes awaycould go away (if SCOTUS strikes down the whole law) as well, but it would also go away if the law were repealed. Since the administration hasn't said they won't defend Section Two, I do not see the problem, logically. If there's something I'm missing I'd be glad to know, but I'm not seeing it.
There is probably more of this stuff floating around and we'll likely be subjected to loads if it in the coming years, but for now, I hope this helps clear up some things.