This column by ACRU Senior Legal Analyst Jan LaRue was published February 25, 2011 on Townhall.com.
President Obama, the self-proclaimed “constitutional scholar,” along with the nation’s top lawyer, Attorney General Eric Holder, announced Wednesday that they couldn’t come up with a “reasonable” argument for limiting marriage to a man and a woman as God, Congress, state legislatures, and the majority of voters intend.
Obama’s decision to stop defending the federal Defense of Marriage Act (DOMA), which defines marriage as a union between a man and a woman for purposes of federal law, is:
• a concession to his leftist base;
• a diversion from his economic and foreign policy disasters;
• a slap shot at Congress as a co-equal branch of government;
• telling Republicans they can’t walk and chew gum if they defend DOMA;
• what he meant by “fundamentally transforming the United States of America;” or
• all of the above.
Obama’s position on DOMA depends on whose political support he’s seeking. According to ABC News: When he began his campaign for U.S. Senate, he told a group called Independent Voters of Illinois — Independent Precinct Organization that he supported DOMA. He then switched to an anti-DOMA. position on Feb. 11, 2004, as the March 2004 Illinois Democratic primary drew near. According to Obama’s staff, the Illinois Democrat changed positions mid-campaign because he heard from gay friends how hurtful DOMA was.
DOMA is “an abhorrent law,” Obama wrote in his letter posted on a Chicago gay and lesbian Web site on February 11, 2004. But he didn’t call God’s law “abhorrent” at Rick Warren’s “Saddleback Presidential Candidate’s Forum in 2008:
“I believe that marriage is the union between a man and a woman. Now, for me as a Christian — for me — for me as a Christian, it is also a sacred union. God’s in the mix;” he told Warren when asked to define marriage.
Apparently, God is out of “the mix.” Obama is “grappling” with his personal position on marriage, according to White House Press Secretary Jay Carney at Wednesday’s press briefing.
Since Obama and Holder don’t like DOMA and don’t want to risk it being upheld if the courts apply the lowest level of constitutional review, called rational basis, they’re telling courts to make them defend DOMA under a heightened standard of review, which Holder won’t do because it’s too high of a hurdle.
According to Holder’s statement released Wednesday, two new DOMA lawsuits in the Second Circuit have thrown a legal curve the dynamic duo can’t handle:
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
In his letter to House Speaker John Boehner on Wednesday, Holder cites to a 2004 11th Circuit case, Lofton v. Secretary of the Dep’t of Children & Family Servs. which he and Obama must not have read. The court upheld a Florida law prohibiting practicing homosexuals to adopt children. The court reviewed the law under the “rational basis standard,” rather than heightened review, finding that “the present case involves neither a fundamental right nor a suspect class.”
The court found it persuasive that “all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class,” citing to rulings by the 4th, 5th,6th, 7th, D.C., Federal., 10th, and two by the 9th Circuit that homosexuals are not a “suspect class;” therefore, heightened review does not apply.
If Obama and Holder believe that the judiciary is the final arbiter of constitutional claims, why are they ignoring rulings by nine out of the 12 circuit courts of appeal that have rejected their conclusion that heightened review is required?
And it gets more baffling. Even though the administration won’t defend DOMA–it will continue to “enforce” it, according to Holder’s letter to Boehner, stating:
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
Neither Obama nor Holder has explained how enforcing an “unconstitutional” law complies with their oaths to defend the Constitution, or why they expect the heads of federal agencies, who also took an oath to defend the Constitution, to enforce a law their boss says is “unconstitutional.”
If they’re serious about cutting spending, Republicans need to calculate the federal and state costs of extending benefits to “married” homosexual couples. Judge Andrew Napolitano, Fox News’ judicial analyst, said that the economic impact is “so enormous it can’t even be quantified at this moment in time.”
According to an Obama 2008 campaign statement about families in a changing economy, he should be the last person undermining traditional marriage:
Since 1960, the number of American children without fathers in their lives has quadrupled, from 6 million to more than 24 million. Children without fathers in their lives are five times more likely to live in poverty and commit crime, nine times more likely to drop out of school, and 20 times more likely to end up in prison.
Count the cost. It means the wages of sin is debt.
Defending DOMA makes sense for all the right reasons: constitutionally, morally and fiscally. There are several outstanding pro bono public interest law firms that are lined up to assist Republicans.
Obama thinks it’s easier to grapple with God over marriage than with a federal judge.
Republicans and Democrats should know better. There’s a bigger judgment day than the one in 2012.