Breaking: Obama to abandon DOMA defense

posted at 12:40 pm on February 23, 2011 by Ed Morrissey

Hey, why not?   With the nation focusing on union influence in the public sector and a debate on public spending, what better time to reverse course on gay marriage?  Marc Ambinder reported it for National Journal:

President Obama has decided that the Defense of Marriage Act is unconstitutional and has asked his Justice Department to stop defending it in court, the administration announced today.

“The President believes that DOMA is unconstitutional. They are no longer going to be defending the cases in the 1st and 2nd circuits,” a person briefed on the decision said.

Sooooooo …. when did the Constitutional Scholar in Chief come to this conclusion?   Barack Obama has been in office for two years (having run on the promise to repeal DOMA), and during his entire term, the DoJ defended DOMA’s constitutionality.  Now Obama is apparently saying he was wrong all along.

Maybe he should consider changing his mind on ObamaCare, too.  At least in the case of the PPACA, a couple of federal judges have already reached that conclusion.  Some district courts have reached the same conclusion about DOMA, too, although both the appellate courts and the Supreme Court have thus far declined to agree.

The issue of DOMA is complicated for conservatives.  Rep. Bob Barr introduced DOMA in response to state courts declaring a right to gay marriage in an attempt to block those states from forcing the rest to recognize the marriage through the “full faith and credit” clause of the Constitution.  (Barr later switched to Libertarian and denounced DOMA.)  The act was intended to sequester such rulings to the state level, but originalists have long complained that DOMA was structurally flawed, and that only a constitutional amendment would suffice.  Efforts to move an amendment have mostly come to naught, and many conservatives believe that marriage is an issue best left to the states.

If the DoJ stops defending DOMA, it puts the ball in Congress’ court, or with outside groups, to continue its defense.  I’m not sure whether or how Congress would go about defending the act, and with Democrats in charge of the Senate, it would seem unlikely that the full Congress would authorize it.

Why abandon DOMA now, after two years of defending it?   Perhaps the President has finally realized that his allies are thinning, and he figures that he needs to start pandering to those still on his side.  It could certainly help distract from the budget fight, if Republicans take the bait.

Update: Gabriel Malor e-mailed me this clarification:

You might note in future posts that the AG’s DOMA decision applies only to DOMA sec. 3, which sets a federal definition of marriage. That’s the part that overrode state primacy in family issues like marriage. DOMA sec. 2, which holds that states do not have to give full faith and credit to same-sex marriages from other states, is not at issue in any federal litigation and is not disturbed by the AG’s 530D notice.

A copy of the 530D letter can be found here (PDF)[.]

So noted — and that makes this issue perhaps a little less than advertised.


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