There are three cases right now in which the Obama administration has to defend laws that it has vocalized opposition to: two cases challenging the Defense of Marriage Act and a case challenging the “Don’t Ask, Don’t Tell” military ban on openly gay servicemembers.
In the DOMA cases, a federal district-court judge ruled last week that the 1996 law violates both states’ rights and the equal protection clause.
Judge Joseph Tauro found that DOMA, which bars federal recognition of any non-heterosexual union, infringed upon a state’s right to define marriage and unfairly singled out a group for discrimination.
In the pair of cases, filed by the Commonwealth of Massachusetts, which legalized same-sex marriage in 2004, and seven married same-sex couples and three widowers who had been married in the state, the Department of Justice will now have to decide if it will appeal.
Last year, the administration filed briefs supporting DOMA and stated that “until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
However, Barack Obama, as a presidential candidate, stated that he believed federal law should not discriminate against same-sex couples, which is what the law does.
Though the judge found DOMA violated states’ rights and the equal-protection clause, the latter may be the stronger argument.
In an analysis, one writer noted a counter example to the assertion of infringement of states’ rights: immigration. Though states are allowed to recognize marriages of convenience, it is the sole responsibility of the federal government to deem them “fraudulent.”
But the equal-protection finding may hold through a Supreme Court appeal.
In a California case that began Tuesday, the Log Cabin Republicans have asked a federal judge to overturn the ban on openly gay servicemembers. In this case, too, the Department of Justice is defending a law that President Obama opposes — and, here, is actively working to repeal.
In opening arguments, a lawyer for the Log Cabins noted that Obama’s assertion that the ban weakens national security shows it should be declared unconstitutional.
In response, a Justice Department lawyer said the plaintiffs were attempting to force a federal court to overstep its authority as Congress is debating the ban’s repeal, making the trial unnecessary. Interestingly, he also said the government would only present the legislative history of the statute — not any witnesses or other evidence.
It’s a tough line for the administration to walk: upholding laws that it believes to be unconstitutional. While DOJ is tasked with enforcing the laws of the land, perhaps these merit forbearance.