The Defense of Marriage Act (DOMA) was passed by Congress and signed into law by then President Clinton to give states the right to decide whether to recognize a same-sex marriage from another state.
Yesterday, President Obama declared that law unconstitutional, and instructed the Department [of Justice] not to defend the statute in court. This is a disturbing policy reversal. Just last month, the White House press secretary told reporters, [W]e cant declare the law unconstitutional . . . [W]e . . . have to represent the viewpoint of the defendant.
The idea that the President of the United States can order the Department of Justice not to defend a law, duly passed by Congress and signed into law by the President, should send shockwaves through anyone who is concerned with civil rights and civil liberties. The President isnt a king. He doesnt get to make decrees. He is the chief executive with the responsibility to enforce existing laws even laws he doesnt like.
Article II, Section 3 of the Constitution specifically provides that the President "shall take Care that the Laws be faithfully executed," and this includes defending those laws in court. The President and his Department of Justice have an obligation, an affirmative obligation, to defend every law unless the Supreme Court of the United States were to declare it unconstitutional. Under the landmark case Marbury v. Madison, the Supreme Court has the right to review acts of Congress. The President doesnt get to make that decision on his own. It violates the principle of the rule of law. Our nation cant have the President, acting as a monarch, decide to issue a decree. That is not how a representative democracy works.
The Department of Justice is the party that has legal standing to defend a suit against a federal statute. With activist groups already challenging DOMA, who is going to be the defending party here? While Congress should be able to intervene to defend the statute, this would not be necessary if the President would fulfill his Constitutional obligation. Congress should not be required to do the Presidents job. The Constitution sets up a system where Congress passes the laws and the President, the chief executive, executes and enforces those laws.
President Obama should reconsider the dangerous precedent this sets and uphold the rule of law.