The Editorial Board of the New York Times today encourages the Obama Justice Department to stop defending the Defense of Marriage Act in federal court. The law, they say, is “blatant discrimination” that should be “presumed to be unconstitutional.” With this, I agree. DOMA, signed into law by Bill Clinton, creates federal permission for state discrimination and locks same-sex partners in many states into a status of separate but equal. The fact that the law has survived this long is incredible as it is so clearly unconstitutional on its face. The New York Times is absolutely right that the arguments put forth to justify the law initially and to defend it since are flimsy at best, and hateful and bigoted at worst.
Still, the Editorial Board of the Times does not seem to have thought through its position to any kind of logical conclusion. The fact that DOMA is indefensible is clear, and yet the Obama administration is still defending it. So, they conclude, “[t]he executive branch’s duty to defend federal laws is not inviolate,” and the Justice Department should agree with the law’s challengers that it is unconstitutional and cease to defend it in court. This position is indefensible with any kind of projection of the long-term consequences of such a choice.
A choice by the administration to stop defending a law passed by both houses of Congress and signed by the president would clearly enrage conservatives and be seen as a gross overreach of executive authority. This overreach would likely, in turn, be seen by conservatives as a license to return the favor when next a Republican president was in office. Progressive bills passed by the current Congress, and even bills long-standing in federal law, would be at risk of being overturned by conservative courts simply by virtue of not being defended by the Justice Department.
The most obvious candidate for this treatment would be the health care overhaul. The current challenges to the health care bill are surely to continue through 2012 and even conceivably 2016. If, in either of those elections, a Republican were to take the White House, they would face the choice to defend the law, or to agree with its challengers that it is unconstitutional. If the current administration allows DOMA to go undefended, the health care law would likely precipitate the same choice by a future Republican administration.
The grand effect of this precedent would be to give each successive presidential administration an effective veto on the legislation passed under previous congresses and presidents. Whenever a president of one party signed into law a bill opposed by the opposition party (which currently would be all of them), opponents could simply wait until a president from the opposition party is elected, challenge the law in court, and sit back assuming that the current president would support their challenge. Without standing to oppose these challenges, no parties outside the federal government could stand up to prevent the invalidation of law after law, and then reinstatement of an opposed legal regime by each successive administration.
Even if President Obama opposes DOMA, which he does, and even if the arguments supporting DOMA are weak, which they are, the Obama Justice Department should still make those arguments. Some of the more extremely facially discriminatory arguments could be avoided, but overall a sitting administration has a responsibility to defend a law currently on the books. There is no reason to believe a law on such weak constitutional footing as DOMA will ultimately be upheld. Progressives should wait until the inevitable striking down of DOMA is final. If the law was defended throughout its legal challenge, conservatives will be left with few arguments for reverting back to any kind of DOMA-like regime. Any steps by the Obama administration to do anything less than fully defend DOMA (to the extent it is defensible) will only be fodder for conservatives to attack the process, rather than the substance, when the law is overturned.
There are many constitutional issues on which I would not encourage patience. Waiting for democracy to grant rights that should be fundamental guarantees too often leads to indefinite waiting. In this case, we are waiting not for democracy, consensus, or majority opinion. Instead, democracy has spoken with a unconstitutional voice, and we are waiting for the process of judicial review to take its course. Though this process is slow, it is inevitable. Let the different branches of government do their respective jobs, the executive defending the law and the judiciary judging its validity. DOMA will be struck down, and the process that achieves that result will be unimpeachable.