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Defense of Marriage Act Indefensible – Updated

MCQ - February 24, 2011

President Obama has recently announced that the federal government will no longer defend legal challenges to the Defense of Marriage Act (“DOMA”), which allows states to decline to recognize same-sex marriages performed in other states.  The President’s decision was based on a recommendation from the DOJ that the law is unconstitutional.  GOP, and some democratic, lawmakers have lambasted the President’s decision as a dereliction of his duty, saying that it’s up to the courts to decide what laws are unconstitutional and that the executive branch must defend the laws passed by congress regardless of its opinions about the laws’ constitutionality.

This comes at a time when the tide (to me at least) seems to be turning more in favor of same-sex marriage and against the patchwork of laws (like California’s prop 8) which prohibit it.  The Church has been fairly silent on this issue for some time now.  What do you think?  Are we at the point when same-sex marriage is going to begin to see more widespread acceptance?  Is the President’s decision correct?  Should the Church weigh in on this issue again, and if so, how?

Update: The results of the President’s Action


  1. I think that all branches of government should be involved in the process of constitutional interpretation. While only the court has judicial review, the President should not defend unconstitutional laws as being constitutional. Now it is still the law…for now. He is just not defending it.

    I am sure the Church will chime in. And I will groan when it does. Sigh.

    Comment by Chris H. — February 24, 2011 @ 3:46 pm

  2. The church has already commented(indirectly))on the decision by the Obama administaration not to defend the constitiutionality of certain parts of DOMA.

    See the editorial in the Deseret News yesterday the 23rd opposing the decision not to defend DOMA in the courts. http://www.desnews.com While this should not be taken as offical church condemnation of the decision I am quite sure that editorial wouldn’t of being published without the approval of the brethern. If I were to hazzard a guess I suspect that Dallin Oaks had a hand in the editorial even if he didn’t write it.

    A few comments about DOMA and the challenges to it. The Obama administration is NOT refusing to defend the provisions of DOMA which say that a state which bans same sex marriage does not have to recognize same sex marriages preformed in other states. Therefore a couple who contacted a same sex marriage in Massachusets would NOT be considered married in Utah. This provision of the law has not yet been challenged in federal courts

    The cases currently pending in the first and second federal circuit court of appeals involve same sex couples who are legally married in Massachussets and Connecticut but have been denied certain federal benfits that go to married couples, filing joint tax returns, receiving social security survivor benefits and so forth.

    The decision by the Obama administration states thay they believe that these provisions violate the equal protection provisions of the consitituion. This I believe in my humble and meaniggless opinion is a very strong legal argument. But we will see how the circuit courts of appeals and probably the supreme court rules

    Comment by john willis — February 24, 2011 @ 4:36 pm

  3. Robert George of Princeton is on the DesNews editorial board. He is closely aligned with NOM. I do not think Elder Oaks really needs to push the paper on this issue.

    Comment by Chris H. — February 24, 2011 @ 4:43 pm

  4. You may be right about the influence of Robert George as opposed to Elder Oaks. However if you read the editorial it mentions how in the Ford administration Edward Levi the attorney genreal pursued a two track approach to defending and challenging a law they believed to be unconstitutional. Levi was a professor and Dean at the University of Chicago when Elder Oaks was a student and professor there. Just saying.

    Comment by john willis — February 24, 2011 @ 5:00 pm

  5. Oh, gosh, as someone who lives in California and was here when Prop 8 was on the balance, I literally cannot stand for another church-endorsed campaign in regards to SS-marriage. I could hardly stomach attending church for a few months. Entire blocks devoted to Prop 8. Phone calls to my home. Pass-along lists asking for volunteers to hold signs at intersections, envelopes to put financial donations, prayers in Sacrament meeting from the pulpit, full F&T meetings that were nearly entirely devoted to the topic. If the church starts chiming in, I’m bringing my iPod with me to church and “checking out” when the topic even comes up.

    Comment by LuluBelle — February 24, 2011 @ 5:01 pm

  6. It was the right move by Obama.

    Comment by Dan — February 24, 2011 @ 5:21 pm

  7. Robert George was quoted in the Washington Post as someone who welcomed the administration’s withdrawal (making him an unlikely source of the DN editorial).

    Some opponents of same-sex marriage said the administration’s decision could end up helping to preserve the law in court.

    “The previous efforts of the Obama administration and DOJ to defend the law were so inadequate as to raise the suspicion that the Justice Department was deliberately throwing the case,” said Robert George, a political science professor at Princeton University who opposes same-sex marriage. “Chances are the law will get a robust defense, and I suspect it will withstand constitutional scrutiny.”

    I think he has a point.

    Comment by Last Lemming — February 24, 2011 @ 6:14 pm

  8. George is just saying that he welcomes the court battles that are now on the horizon. I am pretty sure that Joe Cannon wrote the editorial.

    Comment by Chris H. — February 24, 2011 @ 6:17 pm

  9. The true test I think is how will the President address this during the election. Will he still come out against Gay Marriage? To date, it has always been the most politically expedient thing to do on a national level.

    Comment by Tim J — February 25, 2011 @ 7:17 am

  10. There has been a lot of criticism to the effect that Obama regards the law as so unconstitutional he has no obligation to defend it, but yet so constitutional that he has an obligation to enforce it.

    The courageous position would be to neither enforce nor defend something that you believe is clearly unconstitutional. The more practical problem is if the government won’t at least try to defend the law, how is it supposed to get a fair trial?

    Where if Obama took the more practical course, and refused to enforce the law, there would be no need for a court case in the first place. It is enormously hypocritical to enforce a law and then refuse to defend your own actions.

    Comment by Mark D. — February 26, 2011 @ 12:23 pm

  11. Mark,

    It makes no sense for Obama not to enforce a law he disagrees with. It implies he is above the law. This was Bush’s problem, as per John Yoo, who thought the president could do whatever the hell he wanted.

    Comment by Dan — February 26, 2011 @ 7:30 pm

  12. It implies he is above the law

    On the contrary, Dan, it implies he has a moral and legal obligation to follow the Constitution, which is the supreme law of the land.

    Suppose Congress passed a law re-establishing slavery in the United States. Is it the president’s legal and moral duty to enforce that law? Does he have to enforce it for as many months as it takes for the Supreme Court to decide the particulars of the case? What if the Supreme Court issues another Dred Scott? Does he have a legal obligation to enforce the Supreme Court decision, even if it is obviously wrong?

    Clearly some benefit of the doubt must issue to the courts, as a simple matter of constitutional stability. However, there is no reason why the courts must be regarded as the ultimate authority on all constitutional questions.

    Comment by Mark D. — February 26, 2011 @ 9:08 pm

  13. The courts are the ultimate authority on all costitutional questions, as per the constitution, but that doesn’t mean that the executive branch can’t be the proximate authority.

    It takes a long time for a case to wend its way through the court system, so while the courts are deciding the issue, the executive branch can use its own brains and decide not to enforce a law that it reasonably believes is wrong. That happens all the time by the way, in quiet ways. Laws that are on the books are sometimes overlooked by an executive branch that has to decide how best to allocate its scarce resources.

    Comment by MCQ — February 26, 2011 @ 11:24 pm

  14. The courts are the ultimate authority on all costitutional questions, as per the constitution

    I beg to differ – per Article III Section 2:

    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    So it would seem that the Supreme Court has no constitutional authority that Congress can’t take away, with a relatively small number of exceptions. For example, Congress could pass a law stating that the jurisdiction of the federal courts does not extend to cases involving abortion. There are many such passages in the United States Code already.

    Comment by Mark D. — February 27, 2011 @ 12:35 am

  15. Mark D, you don’t know what you’re talking about.

    Are you seriously suggesting that Congress could take away all appellate authority from the Supreme Court? Even if that were true (which is ridiculous), we were not talking about the Supreme Court, we were talking about the court system in general. The provision you quoted only applies to the Supreme Court, not all federal courts. The fact remains that the courts, meaning the judicial branch, has ultimate authority under the constitution to decide whether a law is constitutional. The point I was making was that, despite that fact (and it is a fact), the executive branch may still decide not to enforce a law based on its opinion that the law is unconstitutional, subject to review by the courts.

    Comment by MCQ — February 27, 2011 @ 2:04 am

  16. The fact remains that the courts, meaning the judicial branch, has ultimate authority under the constitution to decide whether a law is constitutional.

    At the federal level, Congress can amend the Constitution to overrule the Supreme Court. This was what happened with the 11th Amendment, and it was the logic behind discussions of a “marriage amendment” during the Bush administration.

    If you’re talking about the judicial branch generally, take Prop 8 as an example. The California Supreme Court said it was “unconstitutional” to not have gay marriage in the state, but obviously this wasn’t the last word. The legislative branch (in this case, the people of California) overruled the Court. So while I wouldn’t agree with Mark D that Congress can “take away” the power of the judicial branch, obviously it can disagree on the question of constitutionality and change a constitution to make something constitutional that wasn’t. At that point, either this “new” constitutionality sticks, or the situation is thrown back into the court system (which is what is currently happening with Prop 8). But even if the Supreme Court comes down on the constitutionality of an issue (for example, gay marriage in the 1970s was dismissed for “want of a substantial question”), as time goes on, views change. Judicial precedent can be overruled and new precedents established (the question of the eventual legality of sodomy is a good example). It can take some time, even a generation, but ultimately I would say that “ultimate authority” over constitutionality doesn’t really rest with any branch.

    Comment by Alan — February 27, 2011 @ 5:15 pm

  17. Alan, that’s ridiculous. If the Supreme court rules a law unconstitutional that is the last word on the constitutionality of that law. If the constitution is subsequemtly amended, then that’s a completely new issue, and changes nothing about the fact that the law was unconstitutional at the time of the court’s ruling.

    Comment by MCQ — February 27, 2011 @ 9:50 pm

  18. For one I think gay marriage is inevitable. At best the Church has been fighting a rear guard action that will only delay events. Look at the polling for those under 40 and you’ll see gay relationships are mainstream and accepted. For those in their 20′s it’s no big deal by and large.

    That said I can’t quite figure out Obama’s actions. Clearly they are political on the face of it to shore up one part of his base that was upset with him. (Otherwise why now? Why not October? Oh yeah – there was an election) The inconsistent part is of course arguing he doesn’t need to defend the law because it is unconstitutional. (Something he never held before) I can understand that. A President shouldn’t enforce unconstitutional laws. The problem is he’s only saying he won’t defend it in court. He’s still enforcing the law which is a pretty big inconsistency.

    Comment by Clark — February 28, 2011 @ 10:53 am

  19. If the Supreme court rules a law unconstitutional that is the last word on the constitutionality of that law.

    Thus the continued enforcement of the Dred-Scott decision. Hey! Wait a second…

    Comment by Clark — February 28, 2011 @ 10:54 am

  20. It makes no sense for Obama not to enforce a law he disagrees with. It implies he is above the law. This was Bush’s problem, as per John Yoo, who thought the president could do whatever the hell he wanted.

    One standard view of the separation of powers and the intended tension between the three branches of government is that the executive branch should have the power to decide how and when to enforce various laws. This happens all the time such as deciding when and if to enforce various FCC regulations or anti-monopoly regulations.

    It’s not that the President can do whatever he or she wants. It’s that they can decide not to enforce laws (say environmental regulation) but then the other branches can check him on this. (Say by taking the EPA to court) Thus the intention. But the President can always decide where to apply resources with the congress deciding what those resources are.

    If the Supreme court rules a law unconstitutional that is the last word on the constitutionality of that law.

    MCQ, I probably should say more on this point. After all the Dred-Scott decision is a good quip but many would argue its abandonment has as much to do with the 14th amendment as anything else.

    That said the real issue is stare decisis which almost every candidate to the Supreme Court says they agree with and then almost always in practice they wiggle away from voting more or less according to their ideology. One can argue how much this happens when a different sort of law is decided by the court. i.e. the wiggle room is because it is different and there’s an argument over how much precedence applies logically. Obviously conservative critiques of say the FDR court up through the 70′s saw the liberal courts as activist and throwing out precedence. Liberal critics of today’s court say the same about conservative judges.

    What’s more interesting is more blatant over-ruling of precedent. I think it safe to say the court in the mid 20th century did that a lot. For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases. The court is pretty explicit about this.

    W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.
    —Smith v. Allwright, 321 U.S. 649, 665 (1944)

    Comment by Clark — February 28, 2011 @ 11:07 am

  21. Are you seriously suggesting that Congress could take away all appellate authority from the Supreme Court?

    In constitutional terms, yes. The Supreme Court has certain jurisdiction which cannot be taken away by Congress, but the vast majority of its jurisdiction is at legislative sufferance. That is what “with such exceptions, and under such regulations as the Congress shall make” means.

    Of course, in practical terms, the framers did not intend for Congress to take away all of the Supreme Court’s appellate authority, just to have the power to decide where and when that appellate authority exists, and to establish the jurisdiction (and the very existence of) all other federal courts.

    Comment by Mark D. — February 28, 2011 @ 11:32 am

  22. The fact remains that the courts, meaning the judicial branch, has ultimate authority under the constitution to decide whether a law is constitutional.

    Not true, and it never has been. The constitutional authority of the judicial branch is to resolve actual cases and controversies. The judicial branch has an opinion on whether laws are constitutional or not, and resolves actual cases and controversies accordingly, “with such exceptions, and under such regulations as the Congress shall make”.

    It is only political pressures – the prestige and reputation of the courts – that keep Congress from exercising its Article III Section 2 powers in more obvious ways.

    Even when Congress defers to the courts completely, without exception, to resolve actual cases and controversies, legislators have unrestricted authority to decline to pass legislation on the grounds that they believe it violates the constitution, even if the judicial branch disagrees. The executive power to decline to enforce the decisions of the courts it believes are unquestionably wrong is even more pronounced.

    Comment by Mark D. — February 28, 2011 @ 11:55 am

  23. Clark, as you said, that desision was was overruled by the 14th amendment. that’s a good example of what I was saying. The court has never directly been overruled on that decision, wrong as it was. The law of the land on that issue, however, was changed by the 14th amendment.

    Mark D, we’re talking past each other. As an attorney, I’m well aware of the Constitutional provisions concerning the Supreme Court and its jurisdictional limits. This thread is not about that, and your continued insistence on explaining obvious and irrelevant points about that subject is insipid. Further comments on that subject will be deleted.

    Comment by MCQ — February 28, 2011 @ 1:03 pm

  24. Clark, #18, says: At best the Church has been fighting a rear guard action that will only delay events.

    LOL! Double entendre intended?

    Comment by Beavis — February 28, 2011 @ 6:02 pm

  25. MCQ, Just answering your question. I know you have substantial background in these matters and thought you were willing to entertain a debate on the issue. Clark seemed to bring up a lot of interesting points.

    Comment by Mark D. — February 28, 2011 @ 8:57 pm

  26. Sorry, Mark D. Probably over-reacted there. I would just like to get back to talking directly about the defense of DOMA. Apparently, the house is now going to hire its own special counsel.

    Comment by MCQ — February 28, 2011 @ 10:19 pm

  27. MCQ, No problem. I appreciate the desire to get things back on track. As far as the DOMA is concerned, is there a precedent for the legislative branch to defend a law in court when the executive branch doesn’t want to? Should it be able to?

    Comment by Mark D. — February 28, 2011 @ 11:11 pm

  28. Just to add, the clear example of rejecting stare decisis is Roe v Wade which many conservative judges think was misruled. I’m fairly confident that if the nation ever has a Republican president for an extended time that Roe v Wade would be overturned. Had Bush I appointed more conservative judges rather than trying to be tricky and getting surprised by Souter I suspect Roe v Wade would already have been overturned. Given how explicitly many talk about that it’s hard to see your point about the constitution being held by everyone. Justice Roberts and Alito have been pretty explicit about this and has hinted he wants to overturn Roe v. Wade.

    Getting back to DOMA, as I said it’s more a question of when gay marriage becomes normalized and not if. The demographics alone will decide the issue unless some really significant social changes happen. In the short term if one wants DOMA to remain then it’s probably better than Obama’s Justice Department recuses themselves and allows someone to defend it who actually is passionate about it. So I don’t quite understand all the controversy about Obama on this matter. Beyond his inconsistency on the matter, as I mentioned.

    As to the courts it’s kind of interesting. I sometimes wonder by the time it gets to the Supreme Court how much the actual presentation by the attorneys really matter in cases like this. It’s not like it’s an obscure issue. I’m sure the Justices already have strong opinions on the matter and can have clerks do their own research. I’m pretty skeptical the DOJ, the attackers of DOMA or friends of the court are going to present some compelling argument that the Justices have never heard of. I’ll even go out on a limb and in my cynicism suggest it’ll be decided along party lines.

    Comment by Clark — February 28, 2011 @ 11:36 pm

  29. No precedent I’m aware of on that, Mark D, but there have been numerous times that the executive branch has chosen not to enforce a law. It’s actually fairly rare for cases to be filed attacking the constitutionality of a law, and to my knowledge, the executive branch has never explicitly refused to defend a law under those circumstances.

    Clark, it’s an old saying among attorneys that you can never win a case on oral argument, you can only lose it. So oral argument does matter, but only in that the justices can decide against you based on your presentation.

    By the time oral argument arrives, there has been voluminous briefing on the case by both sides and the justices have done a lot of research and briefing of their own with their clerks. So yes, oral argument is late in the game, but it’s only about a 10th of what the attorneys do to prepare the case.

    Comment by MCQ — March 1, 2011 @ 7:53 pm

  30. Clark, to follow up on your earlier comment, I’m not sure what the basis for your feeling about Roe v. Wade is, but there have been a couple of times where a Republican president has been serving for two terms in a row (Reagan and Bush2) as well as the Reagan/Bush1 years where there was a Republican president for three terms in a row. If all that isn’t enough to get the justices to overturn Roe, then it’s probably not going to happen.

    My opinion is that the abortion debate has moved on from any attempt to get it declared illegal again. Roe v. Wade has been around for so long and has become so settled that I think it never be overturned and abortion will always be legal in some form. The debate will be about where the line is drawn between legal and illegal abortions.

    Stare decisis is a binding legal principle that judges must follow, but because the Supreme Court is the highest court, there are really no precedents that it is bound by law to follow, especially with regard to constitutional principles. Prior decisions have persuasive authority only, not binding authority, so the Court can always overrule its own prior precedent if it believes the earlier decision to have been in error.

    Contrary to your assertions, however, the Court does not always follow party lines in its decisions. The justices are far less predictable than that, and Souter is not the only justice to have turned out to be a surprise in that regard.

    Comment by MCQ — March 2, 2011 @ 4:37 pm

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