In late February, the Obama Justice Department announced that it would no longer defend the Defense of Marriage Act in cases that come up in federal courts.
This is a sharp reversal from what was previously done. The law was passed in 1996 by a Republican Congress and a Democratic president, and has since been defended by the Clinton administration, the Bush administration and, at least until last month, the Obama administration.
Why the change? According to a statement by Attorney General Eric Holder, President Obama has concluded that DOMA “fails to meet [a heightened standard of scrutiny] and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”
“The Department in the past,” continued Holder, “ has declined to defend statutes despite the availability of professionally responsible arguments, in part because ”” as here ”” the Department does not consider every such argument to be a ‘reasonable’ one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.”
Let’s set aside the divisive issue of gay marriage. The wisdom of allowing it or prohibiting it is not at the heart of this issue. What’s at issue is that President Obama is abdicating his executive authority in order to play partisan politics.
What President Obama is saying, in effect, is akin to what Andrew Jackson told Chief Justice John Marshall after the Supreme Court decided that a state could not impose its laws upon Indian tribal lands: They [the Congress, past presidents] have made their decision, now let them enforce it!
This is not to say that presidents should have no say in the constitutionality of legislation ”” all federal officers are bound by an oath to protect and defend the Constitution. All branches of government should consider the constitutionality of legislation.
But that is what the executive veto is for. Once a law is passed, either new legislation must be written, an amendment must be passed or the Supreme Court must strike it down as unconstitutional. For all laws that remain on the books, the Executive Branch must enforce them and defend them.
To say otherwise would be to allow federal anarchy.
Another question that is raised by the administration’s action is this: Why announce this decision now?
Are we really supposed to believe that President Obama just now figured out that DOMA is unconstitutional and has no rational basis for being defended in court?
No. Obama is simply trying to gain politically, disregarding his constitutional obligations and the good of our constitutional system.
On one hand, it’s no secret that the gay community has viewed Obama as a huge disappointment. Here, Obama is trying to shore up this support and get the liberal wing of the Democratic Party back on his side.
On the other, this is a divisive, contentious issue on the Republican side of the aisle. Here, Obama, ever the Machiavellian, is trying to split the party on cultural lines, splintering conservative support just in time for campaigning for the 2012 election to start.
Obama, through his actions during his presidency, has shown himself to be just another crass, opportunistic politician, the very type of political animal he decried when he was the “hope-and-change” candidate in 2008.
America, because of Obama’s opportunism and his abdication of executive authority, is the worse for it.
Anonymous • Mar 15, 2011 at 7:23 pm
Just on a side note, Tony, your picture makes you look like a completely pompous ignoramus who, if he was any more full of himself, would explode into a glorious mushroom cloud of self-righteousness and condescension. You may want to just put up a normal picture like everyone else.
Anonymous • Mar 15, 2011 at 9:04 pm
Joshua, jealousy is not one of your better qualities.
Anonymous • Mar 15, 2011 at 11:01 pm
I do agree that it was an unnecessary and quite the low blow to post his feelings about the author’s picture, but I think you have conflated jealousy with dislike or hatred. Based on what I’ve read from the poster, it seems pretty clear that he does not not want to trade lives or minds with this author but is rather appalled at the inanity and dishonesty of his writing. You may have not been aware of your egregious conflation of terms, but I suspect an intentional attempt at propping the author up with the word “jealousy” to put down someone while simultaneously implying that the poster, or anyone else for that matter, should recognize some sort of quality in the author that he, or anyone else for that matter, doesn’t have.
I think it is only helpful to post writing that critiques the issue or author in a way that remotely relates to the author’s ideas and writing abilities. Nobody is going to like or dislike the author any more when you throw “jealousy” out there, which I think was your intention.
Anonymous • Mar 17, 2011 at 6:32 am
Grow up Joshua. This was so immature and not constructive to the discussion.
Anonymous • Mar 17, 2011 at 5:56 pm
It’s not like my comment was in lieu of substantive criticism. It was in addition to what I said previously. And you can’t tell me that changing his picture from a normal photo to this was ‘mature.’ It’s not like I was making fun of his hair or face. If anything I’m doing him a favor by pointing out the terrible decision he made of putting up such a ridiculous photo, in a slightly humorous fashion of course.
Anonymous • Mar 18, 2011 at 3:32 am
Im sorry your life revolves around commenting on the fresno state newspaper… 🙂 Isn’t this for students?
Anonymous • Mar 18, 2011 at 3:25 pm
My life doesn’t revolve around commenting on the paper…you know nothing of my life. And I am a student. No idea what point you’re trying to make.
Philosotroll • Mar 12, 2011 at 5:14 pm
Since it looks like my original comment has been removed by the collegian comment editor (despite a lack of profanity; it wasn’t reapproved when I decided to correct a type) I’ll get even more blunt:
Tony is either uninformed or a hypocrite. He’s a conservative attacking a liberal politician for a common action taken on some issue or another by every Republican administration since (at least) Eisenhower. Eisenhower had a policy of not defending discrimination cases, despite their status as “laws of the land” (a policy which, I think, was instituted by the Truman administration, but I’m not sure); the Reagan administration didn’t defend individual council laws; George H.W. Bush refused to defend laws which privileged broadcast licensing on the basis of Affirmative action; George W. Bush refused to defend a law that denied funding for public transit if that public transit system had advertisements advocating the legalization of marijuana.
And, to restate my two previous examples: Appearing before the court in 1976 to argue Buckley v. Valeo, Solicitor General and future conservative Supreme Court nominee Robert Bork submitted two briefs. One taking the position in defense of FECA and the other taking the position he actually held, opposing it. Current Chief Justice John Roberts, in Metro Broadcasting v. the FCC, filed a brief against the constitutionality of the law in question.
If Tony wants to hold every President I’ve listed accountable for their actions, that’s fine. But that’s not what this is about. It’s about a conservative being upset that a law he likes isn’t getting the support he wants it to. I’m willing to accept that Tony didn’t know about these cases, but given the amount he comments (badly) on contemporary politics, it would help if he knew some American judicial history, instead of parroting Fox News.
Anonymous • Mar 13, 2011 at 12:52 am
Hey-
Your comment wasn’t removed or marked bad by me. I just checked the spam filter and Disqus decided to place it under spam for some reason. I’ve approved it now. This system is junk, but it’s what administrators want in place. I want to approve all your comments, but sometimes a single word may trigger it to get marked or I have to mark it. I don’t make the rules 🙁
-Webmaster
Philosotroll • Mar 14, 2011 at 7:34 pm
No worries. I didn’t take it personally. It’s a new system and stuff like that happens. I guess the issue is with the edit feature, if that helps at all.
Anonymous • Mar 9, 2011 at 7:41 pm
Nicely written but misguided. You can’t “set aside” the issue of allowing or prohibiting gay marriage when considering the reasons in which the Obama administration refuses to defend DOMA in court. Gay marriage isn’t just the heart of the issue, it is the issue in DOMA. I agree that the political reasons as to why Obama chose to stop defending it are separate issues probably relating to re-election but it would be incorrect to assume that refusal to defend DOMA in federal court has to do with something other than the the Equal Protection Clause of the 14th Amendment. Just my “opinion” though…
Anonymous • Mar 9, 2011 at 7:41 pm
Nicely written but misguided. You can’t “set aside” the issue of allowing or prohibiting gay marriage when considering the reasons in which the Obama administration refuses to defend DOMA in court. Gay marriage isn’t just the heart of the issue, it is the issue in DOMA. I agree that the political reasons as to why Obama chose to stop defending it are separate issues probably relating to re-election but it would be incorrect to assume that refusal to defend DOMA in federal court has to do with something other than the the Equal Protection Clause of the 14th Amendment. Just my “opinion” though…
Anonymous • Mar 10, 2011 at 2:17 am
What GoBison, Joshua4234, and Philostroll have rightly pointed out is that this author has once again showed his habit of being intellectually and ethically dishonest. This is not promising for anyone entering the business of journalism or writing in general. The timing of this decision and the ability of different administrations to pick and choose what they prosecute is valid, but DOMA is actually in conflict with the 14th amendment, which is a constitutional amendment, not a federal statute passed by congress. This author’s refusal to point out that ALL administrations do this, and that the buzz-phrase of “federal anarchy” has been underway for some time, should contribute to his well-deserved demotion. He makes a few correct–but obvious–observations, flagrantly parades himself as the ideologue he clearly is not ashamed of, and then walks away from it as if he has accomplished something. The most thoughtful of conservative intellectuals surely find his writing and his” takes” distatsteful. .
Philosotroll • Mar 16, 2011 at 12:22 am
I don’t know if Tony needs to be demoted. Sadly, his opinion columns largely consist of him belching GOP-line talking points that are either refutable, incomplete or contain severe omissions. It would be nice if he actually took the time to really learn the legal precedent and take a look at the full scope of the data instead of regurgitating half-digested FOX News segments.
I consider myself a moderate. I use to consider myself a conservative, but I realized, much to my chagrin, that the word ‘conservative’ was not used to denote President Eisenhower, but rather Michelle Bachmann. I aspire to the former and Tony embodies everything that frustrates me about the latter.
But I digress.
My point is this: He shouldn’t stop writing these columns. He shouldn’t be demoted from his post. He should simply write more honestly, with more research and as much critical thought and effort as he is capable of. In the meantime, I will continue to hang out on the comment board with the rest of these nice folks and point out the glaring points of intellectual dishonesty or lack of historical awareness that pervades the content of these articles.
I hope yallen28, GoBison and Joshua4234 decide to do the same, since I always learn a little and revisit my own previous points from reading your comments.
Anonymous • Mar 17, 2011 at 6:35 am
Don’t kid yourself. Not much said on here is nice.
Anonymous • Mar 17, 2011 at 6:35 am
Don’t kid yourself. Not much said on here is nice.
Anonymous • Mar 17, 2011 at 6:35 am
Don’t kid yourself. Not much said on here is nice.
Anonymous • Mar 9, 2011 at 7:01 pm
I am pleased that somebody has tried to write ABOUT something. This something may score rather low regarding issues along the political landscape that should truly concern us, but it is refreshing none the less.
There are many things this writer got correct here. Of course, Obama, along with all other political executives in the age of instant mass communication, didn’t all of a sudden have an epiphany about DOMA. This should be clear. It very well could be that he is trying to solidify his base like you said, along with reclaiming the queers that have been disappointed in him. But, as this conservative author should know, it is not to divide the Republican party across cultural lines. No Republican is going to support anything like a repeal of DOMA or of the DOJ not prosecuting these cases. Even if the Republicans who are closet homosexuals, which there are surely plenty, rightly believe that DOMA is quite the ridiculous federal statute, they are not going to come out publicly and defy their party. It would be career suicide.
You are correct that a DOJ that does not prosecute certain federal statutes renders such a statute meaningless. This seems ridiculous. Congress passed a law that then becomes disregarded by the lawyers paid to carry out such statutes. If I didn’t despise congress and their ideological legislation tendencies, this would bother me much more. However, I do still agree with you that it is ridiculous, in principle.
You should realize, though, that the DOJ must prioritize which statutes are more important to address. The DOJ does have limited resources, and the AG along with the president determine such priorities. Past administrations’ decisions to carry-out, or neglect, certain statutes have been far more horrendous than choosing not to vindicate the absurdity of DOMA. (Then again, I don’t think states that don’t acknowledge same-sex marriages should be forced by the federal government to acknowledge other state’s acknowledgment of it, even though they have to because of the FULL FAITH AND CREDIT CLAUSE). I’d prefer that the DOJ neglect the absurd “war on drugs” and marijuana in particular.
In principle, the ability of the executive branch to neglect federal statute is absurd, and perhaps they should also lobby congress to make changes to laws they find “unreasonable” or “unconstitutional.” They don’t do this because congress is incompetent and it is simply much easier to circumvent that process.
And this article is, at no surprise, ideological and partisan at its core–not informative or putting it in proper context. We are aware that he leans in one particular direction, which is quite alright, but that doesn’t alleviate him of responsibility to think and write clearly about any one particular issue or topic.
Anonymous • Mar 9, 2011 at 4:59 pm
“For all laws that remain on the books, the Executive Branch must enforce them and defend them.”
-This is plainly wrong. The past three administrations, at one time or another, have chosen not to defend at least one issue in court (for one reason or another) and left it up to congress to defend if they wish. They have an obligation to enforce the law, but they have some discretion in defending things in court and have used it for decades. It’s completely obvious you’re only making an issue of this because it is DOMA.
Now, the point about why do it now is completely valid. Of course he probably has some political reason for his timing…he’s a politician. That’s kind of what they all do. To act as though Obama is the only politician that times things for political reasons just makes you sound like an ignorant child. I don’t even like Obama that much, but to single him out on these types of things is just not honest.
Philosotroll • Mar 9, 2011 at 4:13 pm
Just so we’re clear about the history of this sort of decision, the decision for an Attorney General or Solicitor General to refuse to defend legislation is not unprecedented. Robert Bork did it in 1976 with Buckley v. Valeo and John Roberts (yes, that John Roberts) did it with Metro Broadcasting, Inc. v. the FCC. Are you going to point out that George Nixon and George H.W. Bush had politicized election law and equal opportunity legislation, respectively?
If you want to criticize the timing, that’s fine. Of course, if he was trying to swing support from the gay community, then he picked a terrible time to do it. A little less than two years before an election, it’s not going to be relevant whether or not he gave Eric Holder a directive not to defend DOMA, unless DOMA actually comes before the Court, in which case Obama is acting on more than 40 years of precedent sent by conservative Republican Presidents and jurists.