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Defense of Marriage Act—Obama Changes His Mind

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While the president still is reportedly struggling with the issue of gay marriage personally, the author explores the legal and political ramifications of his decision that DOMA violates the constitution.

In a remarkable legal and political shift, President Obama has declared the federal law banning recognition of same-sex marriage unconstitutional. Once a reluctant defender of the Defense of Marriage Act (DOMA), the administration has now concluded that Section 3 of the law, defining marriage as only that between a man and woman, violates equal protection guaranteed by the constitution.

Obama’s about-face stems from his administration’s new conclusion that laws concerning sexual orientation should be subjected to a heightened level of scrutiny in legal discrimination challenges. With a legislative record rife with “stereotypes and moral disapproval” of gays, DOMA is just the kind of law that the “Equal Protection Clause is designed to guard against,” Attorney General Eric Holder wrote in his letter to Congress. Applying this rationale to same-sex couples legally married under state law, the administration sees no reasonable defense of DOMA.

“Much of the legal landscape has changed in the 15 years since Congress passed the Defense of Marriage Act,” Holder said in a statement. “The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military's Don't Ask, Don't Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional.” And so the administration follows suit.

As a candidate, Obama pledged to repeal what he called the “abhorrent” law. At the White House, spokesman Jay Carney said that though Obama himself is still “grappling” with his personal view of gay marriage, he has always personally opposed the Defense of Marriage Act as “unnecessary and unfair.”

Finally acting on that conviction, Obama has made great waves, some say, by shifting more power to the executive branch than the Constitution provides. Does a president get to simply stop enforcing laws he/she doesn’t like?

Former House Speaker Newt Gingrich told Newsmax TV in no uncertain terms last Friday that Obama directly violated his constitutional duties by arbitrarily suspending a federal law—leading to a constitutional crisis and maybe even his impeachment.

“Imagine that Governor Palin had become president,” Gingrich told Newsmax, “Imagine that she had announced that Roe v. Wade in her view was unconstitutional and therefore the United States government would no longer protect anyone's right to have an abortion because she personally had decided it should be changed. The news media would have gone crazy. The New York Times would have demanded her impeachment.”

Even those in line with Obama’s moral compass worry about the long-term effects of such a drastic executive measure.

By taking this position, George Washington Law Professor Orin Kerr wrote in the legal blog The Volokh Conspiracy, “the Obama Administration has moved the goalposts of the usual role of the executive branch in defending statutes.”

Rather than acting as a “dutiful servant of Congress,” Kerr wrote, the Department of Justice would work as a “major institutional player with a great deal of discretion” to defend—or not—any law that is popular or associated with the given administration.

Whether it is legally defensible or not, Obama’s move may certainly have fired up the gay Democratic community for re-election time. “People who haven’t given in a long, long time e-mailed me their credit card numbers,” said one gay Democratic fundraiser, who requested anonymity. “That wasn’t happening before. … There’s no question it’s changed.”

Richard Socarides, former advisor to Bill Clinton on gay issues when he signed DOMA in 1996, agrees. “I still think they wasted precious time [on DADT and DOMA],” he said, “but from a purely political perspective, their timing looks pretty clever.”

Activating grassroots activism could pay off for the president, but it’s still unclear whether gay Democrats think it’s a genuine move or simply a cheap way to maneuver the political machine: “It’s a non-substantive move to try to rally certain supporters,” Chris Cooper of the gay conservative organization Log Cabin Republicans has said, “It doesn’t take the statute or the law off the books.”

However the move may have been motivated, ACLU Executive Director Anthony Romero praised the decision as a great step in the right direction: “The president did the right thing and just propelled gay rights into the 21st century, where it belongs,” he said. “Our government finally recognizes what we knew 14 years ago—that the so-called 'Defense of Marriage Act' is a gross violation of the Constitution's guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America.”

At this point, the administration is set to continue to enforce DOMA, but not defend it. And since the decision was announced, no members of Congress have stood up to defend it, either. House majority leader Eric Cantor, R-Va., told reporters on Monday that the GOP leadership is looking into the matter, and Speaker John Boehner, R-Ohio, told the Christian Broadcasting Network Sunday that the leadership is exploring options.

Stay tuned as Senator Diane Feinstein and Congressman Jerome Nadler plan to introduce legislation that would repeal DOMA entirely.

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