Obama Gets out of Way of Gay Marriage

Daily News Article — Posted on February 25, 2011

(by Valerie Richardson, WashingtonTimes.com) – The Obama administration announced Wednesday that it had withdrawn its legal support for the federal Defense of Marriage Act [DOMA], stating that the law is unconstitutional and therefore the administration is under no obligation to defend it.

Attorney General Eric H. Holder Jr. said in a statement released Wednesday that President Obama has decided that his administration will cease its defense of DOMA’s Section 3, which defines marriage for federal purposes as a legal union between one man and one woman.

Even before Wednesday’s decision, social conservatives were suspicious of the Obama administration’s willingness to give its best effort, as the executive branch tasked with defending the laws Congress enacts, in lawsuits challenging the Defense of Marriage Act.

The act, signed into law by President Clinton in 1996, also says that no state is obligated to recognize same-sex marriages contracted in other states.

“The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Mr. Holder said. “The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

Like Hillary Rodham Clinton and most of the other leading Democrats who ran for the presidency in 2004 and 2008, Mr. Obama has said he opposes DOMA and federal and state constitutional amendments on marriage, but never specified that he favors same-sex marriage. He has said that his religion defines marriage differently and that his views on the subject are “evolving.”

White House spokesman Jay Carney said Wednesday that the president was “grappling” with the issue and that it was important to “make the distinction between his personal views, which he has discussed, and the legal decision that was made today.”

Critics said the announcement makes it clear that the Obama administration has finished evolving and that it clearly favors legalization of same-sex marriage.

“The president has finally come out of the closet on gay marriage,” said Andy Blom, executive director of the American Principles Project. “After months of obfuscation and wishy-washy answers, the president has made it clear that he has no regard for the voice of the people, who have shown in election after election that they support traditional marriage.”

Thirty states have constitutional amendments defining marriage as the union of a man and a woman, and five states [Iowa, California, Connecticut, Vermont, New Hampshire, Massachusetts] and the District of Columbia have legalized same-sex marriage. Maryland is expected to become the sixth such state soon.

The decision effectively throws the defense of DOMA into the lap of Congress, which can instruct its own attorneys to defend federal laws. Mr. Holder said he had informed members of Congress of the decision so that “members who wish to defend the statute may pursue that option.”

Supporters of traditional marriage immediately called on the Republican-majority House to intervene in the DOMA lawsuits.

[“The President’s failure to defend DOMA is also a failure to fulfill his oath to ‘faithfully execute the office of President of the United States.’ What will be the next law that he will choose not to enforce or uphold?] With this decision, the president has thrown down the gauntlet, challenging Congress,” said Family Research Council President Tony Perkins. “It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president’s neglect of duty.”

The move was a huge victory for supporters of same-sex marriage, who backed the president in his 2008 election campaign but have criticized the administration for its defense of DOMA in the face of recent lawsuits.

Joe Solmonese, president of the Human Rights Campaign, called it a “monumental decision” and urged Congress to “not waste another taxpayer dollar defending this patently unconstitutional law.”

“The administration claims that it has a duty to defend the laws that are on the books. We simply do not agree,” Mr. Solmonese said in an e-mail to members after the Jan. 13 brief was filed. “At the very least, the Justice Department can and should acknowledge that the law is unconstitutional.” …..

While it was sudden, Wednesday’s move did not come out of nowhere. Opponents of same-sex marriage had grown increasingly frustrated with the administration for what they called its underzealous defense of DOMA and its omission of key arguments.

In a brief filed Jan. 13 in defense of DOMA at the 1st U.S. Circuit Court of Appeals, the Justice Department states that “the administration supports repealing DOMA,” but that the department must do its job to defend the law “as long as reasonable arguments can be made in support of their constitutionality.”

Brian Brown, executive director of the National Organization for Marriage, told The Washington Times recently that he suspected the administration of purposely tanking its case.

“They purposely avoid arguments that are winning time and time again in court,” he said. “Even scholars on the other side of this issue have said, ‘What is going on here is wrong.’ Anyone who cares about constitutional government should be very concerned about what’s happening in the DOMA case.”

The administration’s decision also raises questions about the executive department’s latitude to opt out of defending laws that the administration may not support.

“Typically, when a law is challenged, the government has a duty to defend the law, and typically they do so with the most vigorous possible defense,” said Jim Campbell, a lawyer with the conservative Alliance Defense Fund. “In this case, we’ve seen executive branch officials refuse to do so.”

Even before the Justice Department’s withdrawal from the case, advocates for traditional marriage had turned to Congress in an effort to persuade the new Republican-majority House to intervene in the case. If the House agrees, then the Office of House Counsel can file its own brief in support of DOMA.

“There needs to be a [legal] defense, because otherwise you don’t have separation of powers – you have one branch being able to trump the other. And that’s wrong,” Mr. Brown said.

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Background

DUTIES AND RESPONSIBILITIES OF THE PRESIDENT OF THE UNITED STATES:

(from Ben's Guide to the U.S. Government website at bensguide.gpo.gov/9-12/government/national/president.html):

The President is the Head of the Executive Branch and generally viewed as the head of the U.S. Government. While he does have significant power, his power is limited by the Constitution. Specifically, [Article 2 of] the Constitution assigns the following powers to the President:

Commander in Chief of the Armed Forces
Make treaties, with two-thirds consent of the Senate
Receive ambassadors and other public ministers from foreign countries
Appoint ambassadors, Supreme Court justices, federal judges, and any officials as provided for by the Congress, with the approval of the Senate
Give an annual State of the Union Address to Congress
Recommend legislation to Congress
Convene Congress on extraordinary occasions
Adjourn Congress, in cases of a disagreement about adjournment
"Take care that the laws be faithfully executed" [Article 2, Section 3]
Fill in administrative vacancies during Congressional recesses
Grant reprieves and pardons for offences against the U.S.

When the delegates to the Constitutional Convention created the executive branch of government, they gave the president a limited term of office to lead the government. This was very different from any form of government in Europe and caused much debate. The delegates were afraid of what too much power in the hands of one person might lead to. In the end, with a system of checks and balances included in the Constitution, a single president to manage the executive branch of government was adopted.

The executive branch of the Government is responsible for enforcing the laws of the land.

(from about.com): A crucial function of the executive branch is to ensure that laws are carried out and enforced.

(from regentsprep.org): Executive Branch: The executive branch of US government is composed of the President, his advisors and all federal agencies and their heads. The executive was created by article II of the Constitution.

Main roles and powers of the Chief Executive:

Enforce the laws passed by Congress
Issue executive orders, enforcing the law
Act as the head of the federal bureaucracy and all federal agencies
Nominate judges (including those to the Supreme Court, requiring Senate confirmation)
Appoint government officials (some requiring Senate confirmation, some not)

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ATTORNEY GENERAL: (from the Department of Justice website justice.gov/ag/about-oag.html)

The Attorney General is the head of the Department of Justice and chief law enforcement officer of the Federal Government.
The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested.
The Department of Justice is an executive department of the government of the United States.
The Attorney General guides the world's largest law office and the central agency for enforcement of federal laws.

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THE DEPARTMENT OF JUSTICE'S MISSION: (from the Department of Justice website justice.gov/02organizations/about.html)

to enforce the law and defend the interests of the United States according to the law
to ensure public safety against threats foreign and domestic
to provide federal leadership in preventing and controlling crime
to seek just punishment for those guilty of unlawful behavior
and to ensure fair and impartial administration of justice for all Americans

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DOMA - DEFENSE OF MARRIAGE ACT: (from wikipedia)

The Defense of Marriage is a federal law that defines marriage as a legal union between one man and one woman (DOMA, Section 3).
Under DOMA, no state (or other political subdivision within the United States) needs to treat as a marriage a same-sex relationship considered a marriage in another state (DOMA, Section 2);
The bill was passed by Congress by a vote of 85-14 in the Senate[1] and a vote of 342-67 in the House of Representatives,[2] and was signed into law by President Bill Clinton on September 21, 1996.