Executive Branch still doing its job on DOMA

Last week a wedge issue with separation of powers illustrations was raised when the Justice Department announced that it would not defend in court, but still enforce the Defense of Marriage Act (passed in 1996 by Congress and signed by Democratic President Bill Clinton).

While President Obama says his stance on gay marriage, "is evolving," so was discussion on this issue in the last week. It may be surprising how much mis-information is repeated on this governmental non-action. A liberal professor form the University of Wisconsin during last week's Institute Day mis-spoke on the subject when she was giving her session on teaching controversial topics in school.

This NPR piece is great. Again, I'm shocked at how many people, and not just the commentators on FOX, don't understand that there is a difference between refusing to enforce a law, which I don't think a President can do under the Constitution, and refusing to defend the constitutionality of a law in court. The Supreme Court has the final word, and if they say the law is constitutional, the Obama Administration would have to continue to enforce it--the NPR piece makes it very clear that it is still being enforced now.

The NY Times also has an interesting article on sexual orientation may now be subject to strict scrutiny vs. rational basis testing in the courts.

http://www.nytimes.com/2011/02/24/us/24marriage.html?hp

It is unusual but it has happened before, under both Democratic and Republican presidents. Here is an example from the administration of the first President Bush:

http://articles.latimes.com/1992-11-06/business/fi-1371_1_cable-operators

Bottom line is that there is a big difference between enforcing the law, which the administration has clearly said it intends to do, as that is the president's obligation under the Constitution, and defending its constitutionality in court when the law is challenged, which they are not required to do if they agree that it is unconstitutional. Others can defend it, and the Court can rule however it likes.

Here is the Justice Department's statement:

http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

The Constitutional Question, headed for the Supreme Court eventually, is does DOMA violate the Full Faith and Credit Clause?

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