Contrary to the suggestion of one Amicus author, the Justice Department today announced that it will stop defending parts of the Defense of Marriage Act in federal court. The Justice Department indicates in its memo, that while it felt able to defend the law against the rational basis standard of scrutiny used in previous cases, the Obama Justice Department is not willing to argue for that standard to be used as a matter of first impression, and does not feel that the law could withstand challenge at a higher level of scrutiny. For that reason, the administration will not defend the law in the 2nd Circuit.
The Washington Post, citing many of the same arguments put forth in the previously mentioned Amicus post, calls the move risky. The precedent that the Obama administration is setting may come back to haunt it, and haunt progressives generally, particularly as concerns the potential constitutionality of Obama’s signature health care bill.
The Atlantic believes that when the dust settles, it will be the ruling against DOMA by Federal District Judge Joseph Tauro, a Republican appointee, that will be seen as the turning point in the movement toward federal recognized marriage equality.
Amicus will of course continue to cover the developments on the legal and social fallout from this decision.
Isn’t Obama an expert on constitutional law by his Ivy League education? Didn’t Obama pledge to uphold the laws of the US Constitution when he took his oath of office for the Presidency? Isn’t Obama the Chief Executive Officer who is charged with upholding the law? Wasn’t DOMA passed overwhelmingly in the House and Senate by both Democrats and Republicans? Can Obama be impeached for not doing his job?
The Atlantic article linked in the original post discusses that it was Obama’s expertise on Constitutional law that allowed him to justify this decision. His knowledge of constitutional standards of review lead him to believe that DOMA was defensible under a rational basis standard (debatable). He also believes that cases involving discrimination based on sexual orientation should be held to a higher standard of scrutiny, so in those courts that don’t have binding precedent, he will not advise his Justice Department to argue for the rational basis test. Based on that, he concluded that DOMA could not pass a higher standard of constitutional scrutiny, and therefore was indefensible in those courts. Hence the dual decisions to continue defending DOMA in some courts, while not in others.
As I discussed at length in the previous Amicus post linked above, I think there is a dangerous precedent set by the president choosing not to defend a law that is already on the books. The Washington Post in the article linked above agrees with me. I think it would be hard to say that this exercise of executive discretion amounts to “high crimes and misdemeanors,” but I still think it is a dangerous choice.
Legally, though, I don’t think it will change DOMA’s fate. DOMA was already doomed. As the Justice Department stresses in its memo, much has changed in the 15 years since the passage of DOMA, and such a blatantly discriminatory law is no longer going to garner the overwhelming support of both parties, or pass constitutional muster in court. The Administration should have let the court battles continue as usual, with the knowledge that DOMA would ultimately be struck down. This could have been coupled with an effort to change the law legislatively, though this approach would have been more suited to the previous Congress.
Let’s remember the practical side of impeachment. The Republican dominated House could impeach Obama. But the impeachment trial would be int the Democrat dominated Senate.
Not likely that it would be an honest trial!!