AG Holder Does End Run Around DOMA in Immigration Case

Having determined that DOMA (the Defense of Marriage Act) is unconstitutional –which Holder announced in February as his reason for pulling out of court cases defending it–he is now acting as if that were indeed the case:

Attorney General Eric Holder personally slammed the brakes on the deportation of a gay New Jersey couple Thursday. The nation’s top lawyer threw out a Board of Immigration Appeals deportation decision so he can review the case himself.

The board had ruled that foreigner Paul Wilson Dorman should be booted – even though he’s in a civil union with a U.S. citizen – because the Defense of Marriage Act bars same sex marriages…

Because the act may be unconstitutional, Holder said, he needs to decide how it applies to the Jersey case – and whether Dorman would qualify to stay here if the act were not on the books.

Polls show that public opinion on this issue has shifted since 1996 when President Clinton signed DOMA into law. Perhaps the law will be overturned at some future point by the Supreme Court (there are numerous cases working their way through the courts) or even undone by a future legislature. That’s very much an ongoing debate in America with views on either side nearly evenly split. But at this moment DOMA is still the law. And though Holder declined to defend it in court, he did say just a couple months ago that his department would continue to enforce it. Indeed, here’s Jay Carney reiterating that point:

Just 10 weeks later that’s apparently no longer the case.

Imagine the outcry if an AG working for President Bush had decided to interfere with a case based on his determination that Roe v. Wade “may” be unconstitutional. The left’s collective blood pressure would skyrocket. In fact, you don’t have to imagine what that would look like, just remember back to l’affair Schiavo. The left was disgusted that partisan politics would enter in to what they considered a straightforward family legal matter. This case isn’t identical obviously, but the situation is similar (albeit with the party labels reversed).

I’m going to go out on a limb and guess there won’t be much outrage from the left about political interference this time around.

Update: Just heard from a friend who is a lawyer. He points out the NYDN story I linked above is misleading in that it makes it sound as if Holder will be reviewing this case himself. In fact what he’s done is vacate the decision of the Board of Immigration Appeals and ask them to reconsider it in light of his take on DOMA’s constitutionality. My friend adds that while this sort of interference with the BIA is not common it has happened before under other AGs and is perfectly legal.

Regardless of who is doing the review, the main point stands. This is a clear attempt by AG Holder to undercut DOMA in contradiction to his statement just 10 weeks ago that, even as he stopped defending it in the courts, he would enforce the law as it stands.