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Mike Huckabee, gay-marriage defender

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Regarding the possibility of another presidential campaign, former Gov. Mike Huckabee (R-Ariz.) said, "I'll put it this way- I don't want to lose. I've got to believe I can win."

Those factors would subject laws discriminating on the basis of sexual orientation to "heightened scrutiny," the same as for distinctions based on gender. Under this standard, defending the law would require the government to show that the discrimination is "substantially related to an important government objective." None exists, Huckabee's false linkage notwithstanding.

The harder legal question is whether the president was justified in taking the extraordinary step of declining to defend a federal statute. "We can't have presidents deciding what laws are constitutional and what laws are not," said Sen. Scott Brown, Republican of Massachusetts. "That is a function of the judicial branch, not the executive."

The judicial branch will get the final say, and the president promised to enforce the law in the interim. Still, you don't want this happening very often. I don't want this happening if a Republican president is called on to defend the new health-care law. It should be, as former solicitor general Seth Waxman has written, "a rare and solemn act."

Which brings me to Roberts, as a lawyer in the solicitor general's office during the George H.W. Bush administration. Roberts not only declined to defend a congressionally mandated program to give minority applicants preferences in obtaining broadcast licenses - he filed a brief urging the justices to strike it down.

The president's actions here are more restrained - and more justified. The law has changed significantly since the Defense of Marriage Act was passed in 1996. Back then, the high court had ruled that states could criminalize homosexual conduct. In the years since, the justices have overruled that decision. Numerous courts have found constitutional protection for gay rights.

"When an act of Congress has been challenged, the solicitor general ordinarily puts a heavy thumb on the scale," Waxman wrote. In this case, Obama was wise to remove it.

ruthmarcus@washpost.com


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