House Republicans will soon announce how they will proceed in the defense of the Defense of Marriage Act. The three most likely outcomes are a vote authorizing outside legal counsel by the Bipartisan Legal Advisory Group (BLAG), a full vote in the House on a resolution to defend DOMA, or unilateral action by Speaker Boehner. BLAG consists of the three top Republican leaders, Boehner, Cantor, and McCarthy, and the two top Democrat leaders, Pelosi and Hoyer. While there is little doubt that Republicans will ensure that DOMA is zealously defended in the courts, a question remains.
Is it worth defending the Defense of Marriage Act?
DOMA has been the law of the land since 1996 when it was passed with wide bipartisan support and signed into law by President Clinton, a Democrat. To date, DOMA has survived legal challenges and, barring repeal, the Supreme Court will ultimately decide its constitutionality. When the Democrat-dominated 111th Congress voted to repeal Don’t Ask, Don’t Tell, there was no coordinated effort to repeal DOMA. Now, months after the Republican takeover of the House, President Obama and Attorney General Holder have reignited the debate about the federal government’s role in defining marriage.
Congressman James Lankford (R-Okla.) pointed out that, “Weeks ago, some members of the press suggested that Republicans would ignore the budget and focus on social issues. I find it ironic now that the president has submitted a budget that will raise the national debt to 26 trillion dollars by his own numbers and he has decided to change the national debate from fiscal issues to social issues and gay marriage.”
The president has every right to express his opinion about the nation’s laws, but also has a constitutionally-mandated duty to “take Care that the Laws be faithfully executed.” Moreover, the Department of Justice pledges, “to enforce the law and defend the interests of the United States according to the law.” So we should trust the federal government to continue to enforce a law they refuse to defend?
If President Obama did not want to defend DOMA, he should have said so at the beginning of his term and allowed outside groups and attorneys to come in and defend the law rather than waiting until cases progressed, crippling intervention.
President Obama is attempting to placate progressives without getting too close to the gay rights movement. As Congressman Tim Huelskamp (R-Kan.) wrote, “in the case of marriage (and on many other issues), President Obama knows his position is so out of the mainstream that not even the liberal-controlled Senate would vote to repeal DOMA.” Maybe that is why President Obama is officially opposed to gay marriage. Even if it this is one big political calculation by a president with his eyes on 2012, Americans are not into playing politics with the rule of law.
The defense of DOMA is about more than the definition of marriage. At any moment, Congress can repeal DOMA and each state has the authority to legalize gay marriage.
When government neglects its duty to defend the nation’s law, those of us concerned about the Constitution and separation of powers will step in to fill the void. Supporters of President Obama should be careful what they wish for. If President Obama can call off the defense of DOMA, a Republican President can decide that the DOJ will quit defending ObamaCare.
As Congressman Lankford said, “This is not the way to deal with the gay marriage debate.”