As expected and first noted here, it appears that the Defense of Marriage Act (DOMA) cases will be taken up by the Supreme Court before the California Proposition 8 case out of the Ninth Circuit Court of Appeals. That case involves totally different issues than those at stake in the DOMA cases. To further add impetus and urgency to the case, a serious separation of powers issue has now evolved and was noted in the appeal to the Supreme Court. This issue was precipitated, probably intentionally, by the Obama Administration.
Before getting into details- and this may take a few diary entries to do the issue justice- let’s go back a little to understand what is happening here. In 1993, the Hawaii Supreme Court ruled that the state must show a compelling reason to deny gay marriage. Opponents feared that if Hawaii or other states recognized gay marriages, other states would have to recognize those marriages under the Full Faith and Credit Clause of the US Constitution. The result was the passage of DOMA in 1996 with the final vote 85-14 in the Senate and 342-67 in the House, a rare feat of bipartisanship (and also veto-proof).
And all was well and good until Barack Obama becomes President. Initially, the Administration defended DOMA while also calling for its repeal. It is long-standing tradition for the government, through the Executive Branch, to defend duly enacted laws in courts whether they agree or disagree with the law. In fact, one can say it is their duty to do so until the law in question is repealed, amended, or stricken down by a court after exhaustion of appeals. Succumbing to pressure of the LGBT community, the Justice Department with Obama’s blessing decided to cease defending DOMA in the courts while simultaneously announcing they would enforce its provisions. Based on Eric Holder’s statement, Barack Obama- not the Supreme Court- unilaterally decided that Section 3 of DOMA was unconstitutional. Section 3 defines marriage as the union between a man and a woman. Holder then, in a separate letter, informed Congress they could participate in suits in place of the Justice Department.
In response, Speaker John Boehner assembled the Bipartisan Legal Advisory Group (BLAG) and by a 3-2 vote along party lines decided to be the party to defend DOMA in the courts. They hired Paul Clement to argue the cases with a legal fee cap of $500,000 which has since risen to $1.5 million. In the most recent filings in the Court, BLAG lambasted Obama and Holder for their failure to defend the law. Specifically, the brief argues in part that the Executive Branch of government is tasked with the duty of executing the laws passed by the Legislative branch. Almost immediately, the government responded questioning the standing of BLAG to defend the law even though they originally invited Congress to do so in 2011. In a separate filing, they further argued that even if the Court ruled BLAG could not defend the law, they would not object to BLAG participating in the case.
There are some obvious things at work here. First, the enforce/don’t defend policy breaks with over 200 years of practice and tradition. Obama wants it both ways and is positioning himself to claim victory no matter what happens. Of course, since the ruling, if the Court takes the case, would come in 2013, hopefully Obama can claim nothing because he will be in retirement. It is yet another example of the Obama Administration talking out both sides of its mouth with the result being confusion. Since he had no compunctions about the non-enforcement of immigration laws, why enforce DOMA if you disagree with it? It is very disturbing that a “President” would choose to selectively enforce or defend laws and illustrates the fact that Obama has more in common with people like Hugo Chavez than he does with any sane American. Second, this move is in response to pressure from the LGBT community, a key liberal constituency. Hence, like Don’t Ask/Don’t Tell and immigration, Obama is pandering to his base. Third, this is typical Obama strategy of vocally taking the high road while, at his direction, his surrogates play in the gutter. While allowing, even encouraging BLAG to intervene on behalf of DOMA, he paints the Republicans as being anti-gay. It should be noted that throughout the legislative debate over DOMA, at no time did any Republican say a state could or should make gay marriage legal or illegal; it was up to each individual state.
The government, in their filings, more or less have created the constitutional situation- a conflict between Congress and the Executive branch- that would force the Supreme Court to take the case if for no other reason than to solve a “crisis” they themselves created. If he prevails and Section 3 is then struck down, he claims victory and can stop enforcing DOMA. If he loses and Section 3 is upheld, then he can hide behind the decision of the Supreme Court and cover his butt with the LGBT community.
Obama is also acutely aware of public perceptions regarding gay marriage. A 2011 Gallup poll showed, for the first time, a majority of Americans “approved” of gay marriage (53%). However, Obama is also aware that that support is tenuous at 53% and hardly a mandate. Also, 38 states have laws or constitutional provisions defining marriage as between a man and a woman. Many of these states are not your traditional red states (Hawaii, Colorado, Illinois, Michigan, Nevada, Oregon, Pennsylvania, Wisconsin).
The cases before the Court originate out of the 1st Circuit, specifically Massachusetts. This is the Gill case. To reiterate the importance of the issue, Holder and company are also petitioning the Court to take the Golinski case out of the Ninth Circuit on an expedited basis. Golinski involves a federal employee. In both cases, the government brief states that Holder and Obama have decided that Section 3 is unconstitutional. BLAG not only argues that the 1st Circuit seriously erred (more on this in the next article), but that the Administration created the separation of powers issue. By framing the argument in these terms, Paul Clement obviously feels that this is a good fight and one in which he is eager to engage. Specifically, because the Administration “abdicated” its duty to defend the law yet simultaneously enforce the law, they forced Congress, for the first time, into the role of defender. They stated that while they intend to enforce DOMA, they have now taken the unusual step of openly attacking the law in courts and siding with members of the LGBT community in briefings. This has the effect of foisting even more court litigation defense on Congress. Of course, BLAG can just give up and Obama will have achieved judicially what he could never achieve legislatively- a de facto repeal of Section 3 of DOMA.
It is important to note two things these cases are not. It does not address Section 2 of DOMA which assures that states that have the traditional definition of marriage do not have to recognize gay marriages recognized in states with same-sex marriage. Also, unlike the Proposition 8 case, it does not address the constitutionality of states to prohibit same sex marriage and enact laws to that effect. Put another way, the Obama Administration avoids pesky, to liberals, questions of federalism, state’s rights and sovereignty, the Full Faith and Credit Clause, the Privileges and Immunities Clause and other constitutional issues that may create broader opinions not in their favor.
In a way, DOMA represents a well-meaning conservative law gone somewhat awry. The definition of marriage and who could or could not marry is the traditional role of states. Just as there is no national hunting law, there was no national marriage law until DOMA. By enacting it, the issue became federalized. Had it not been, this issue could have been decided strictly at the state level to a large degree. Granted, the status of marriage has federal implications- over 1,300 at last count- ranging from bankruptcy to food stamp eligibility to veteran’s benefits, not to mention the tax implications. Of course, that is largely a symptom of a government grown disproportionately large and complex and another issue for another day. Had there been no DOMA, perhaps as concerns gay marriage and federal programs and benefits, they could have enacted a law which recognized same sex marriage as being legitimate. If, as the Obama Administration, liberals and the LGBT community claim, American attitudes towards homosexuals in general and gay marriage in particular have changed so dramatically, they should have no problem getting such a law passed. However, the truth is that is not necessarily the case as voters in North Carolina recently proved. If that were the case, then more than the handful of states that recognize gay marriage would be the norm. The fact is that despite the reasons, the LGBT community cannot make their case with voters so they have resorted to their stand-by- activist, liberal judges willing to redefine over 200+ years of the understanding of marriage as being between a man and a woman. It is no coincidence that these cases arise out of the First and Ninth Circuits since the LGBT community found sympathetic judges there and not elsewhere. Do they honestly believe a test case out of the more conservative 11th Circuit would lead to the same results?
This whole issue illustrates the classic text book liberal strategy of creating a problem- preferably a crisis- in order to advance its agenda. It is imperative, for the sake of our federal system, that Obama and Holder be stopped in their tracks. The best way to do this is by voting them out of office in November. Absent that, the Supreme Court remains the last bulwark against tyranny and the pseudo-dictatorship of Barack Obama.
In the next installment, I will try to explain how the Supreme Court has the unique opportunity to put an end to this mess. It gets a little complicated from here, but there is a single case that could be the salvation for opponents of same sex marriage.