President Obama's risky rejection of the Defense of Marriage Act

The White House says President Barack Obama is "grappling" with his personal views on gay marriage even as he's ordered the Justice Department to stop defending the constitutionality of a law that bans it. (Feb. 23)
Wednesday, February 23, 2011; 7:44 PM

PRESIDENT OBAMA and Attorney General Eric H. Holder Jr. declared on Wednesday that the Justice Department would no longer be an advocate for the indefensible - a law that relegates the nation's gay and lesbian citizens to second-class status.

It was a decision as bold as it was risky.

The law in question, the Defense of Marriage Act (DOMA), bars the federal government from recognizing same-sex marriages. When enacted, the edict was unwise and distasteful but largely symbolic, since no state allowed gay unions. Today, five states legally sanction same-sex marriage, and several others recognize out-of-state unions; such progress, as welcome as it is, has also given DOMA's prohibitions real and hateful meaning.

Because of DOMA, 81-year-old Edith Windsor of New York faces a daunting inheritance tax from which she would have been shielded had her partner of 44 years, whom she married in 2007, been a man. DOMA's restrictions mean that Gerald V. Passaro II of Connecticut cannot collect survivor benefits from his spouse's employer because the person he legally wed is not of the opposite sex. It was in these two cases - Ms. Windsor and Mr. Passaro have brought lawsuits challenging DOMA in federal court - that the Obama administration drew a line: "The President of the United States has made the determination that Section 3 of the Defense of Marriage Act, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment."

As a matter of policy and simple decency, the position is correct. And in acting decisively, the administration has given Congress fair warning that it should step forward to defend the statute if it so desires. But there are potential pitfalls for how the president and the attorney general chose to advance these principles.

The Justice Department is institutionally tasked with defending duly enacted congressional legislation. This does not mean that Justice Department officials must believe in the wisdom of the law or its policy implications, only that there are good-faith and reasonable arguments to be made in its defense. It is, in short, a very low bar. That is the approach taken by former solicitor general Theodore B. Olson in robustly defending a campaign finance reform law that citizen Olson - a conservative Republican - would surely have rejected.

The Obama administration's tactic could come back to haunt it. What would the president say, for example, if a conservative Republican administration in the future attempted to sabotage the Obama health-care initiative by refusing to defend it against constitutional attack?

The administration is right to question a law that singles out a group of people for discriminatory treatment. But the best way to eliminate its invidious effects is to work with lawmakers to erase the law from the books.

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