DOMA: Crucial difference between ‘defense’ and ‘enforcement’

A statement from Speaker of the House John Boehner today highlights a troubling lack of understanding of the Dept. of Justice’s decision not to defend DOMA in the courts:

The constitutionality of this law should be determined by the courts — not by the president unilaterally — and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.

First of all, the executive branch does not have the power to declare a law unconstitutional. That is reserved for the judicial branch. By simply stating that they will not defend the constitutionality of Section 3 of DOMA before the courts, Pres. Obama and the Department of Justice have not overstepped their bounds in any way; Attorney General Holder’s letter which sparked this whole debate states very plainly that “Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.”

There is a big difference between a refusal to defend a law in the courts, which has many precedents, and a refusal to enforce a law that was duly enacted by the Congress, which is an abdication of the executive branch’s constitutional responsibility. With regards to DOMA, DOJ’s actions fall within the former category. It is also legally justified because the cases at hand (Pedersen v. OPM and Windsor v. United States) fall under the jurisdiction of the Second Circuit Court, which does not have a precedent for the level of scrutiny which should be applied to sexual orientation. As Holder’s letter states, DOJ has previously defended DOMA in jurisdictions where precedents exist that apply a simple ‘rational basis test‘ to laws pertaining to sexual orientation. However, the Obama administration believes that ‘strict scrutiny’ ought to apply to cases where sexual orientation is a material issue; it also believes that Section 3 of DOMA does not meet this standard of strict scrutiny, therefore it will not defend the issue before the Second Circuit.

However, this does not mean that Obama or Holder have ‘unilaterally’ declared DOMA unconstitutional, nor have they refused to enforce it. The ultimate question of whether strict scrutiny or rational basis review applies to cases concerning sexual orientation is still up to the courts, as well as the question of whether or not Section 3 of DOMA meets the standard which the courts decide upon. If defenders of DOMA had actually taken the time to parse Holder’s letter or use their brains for half a second, rather than spewing reactionary bullshit to score political points with values voters and separation-of-powers fearmongers, they would’ve seen that the legal fate of DOMA is still very much up in the air; and barring legislative action, it will be decided in the courts.

Of course, other thoughtful people have already said as much; I just wanted to add my voice to Incomprehensible Shouting.

    • Mike
    • March 5th, 2011

    You are a tomahawk of honesty in the skull of lies.

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