President Barack Obama and Attorney General Eric Holder took a courageous step in refusing to defend any longer the Defense of Marriage Act. But they did raise some questions.
The misnamed law actually is a defense of only certain marriages, those between one man and one woman. It clearly discriminates against gay men and lesbians. Anyone who respects the Constitution should see that the law violates the Fourteenth Amendment that guarantees for everyone “the equal protection of the laws.”
To a layman, a question that quickly comes to mind is whether a president can declare a law unconstitutional. The presidential oath of office makes no mention of acts of Congress.It says, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Another provision, however, says that the president “shall take care that the laws be faithfully executed.”
That sounds, to the layman, completely restrictive. But several prominent experts in the law believe the Constitution gives a president some leeway. Take Justice Antonin Scalia, for example. In a concurring opinion in a 1991 case, Freitag v. Commissioner, he wrote that it was not enough for the Constitution to give the president the power to execute the laws and that “it was necessary to provide him with the means to resist legislative encroachment upon that power.” He argued that the Constitution gave the president the power to veto encroaching laws or “even to disregard them when they are unconstitutional.”
That background should make the same-sex marriage issue interesting if it reaches the Supreme Court. Lawyers David Boies and Ted Olson seem eager to make that happen with their effort to end California’s voter-imposed ban on gay marriage. Within an hour of the Justice Department’s announcement of the new policy, the lawyers cited the move as a reason for the U.S. Court of Appeals in the Ninth Circuit to overthrow Proposition 8 and allow gay marriages to resume in California.
Refusing to defend a law on grounds that it is unconstitutional is rare but by no means unprecedented. Bloomberg Business Week columnist Ann Woolner found two instances: Under President George H.W. Bush, the Justice Department declared unconstitutional a law that essentially gave regulators preference to minority-owned broadcasting stations. And six years later, President Bill Clinton’s administration refused to defend a provision requiring the military to discharge most members of the armed services who were HIV-positive.
So President Obama looks to be on solid ground in turning his back on the law that his administration had been defending for two years. He was right that popular views have changed in the 15 years since both houses voted overwhelmingly for it and President Clinton signed it.
His bold move could hasten the growing acceptance of same-sex marriage in California, in Maine and throughout the nation.