We reported last week that President Obama and his Department of Justice (DOJ) had made the startling claim that the federal Defense of Marriage Act (DOMA) is unconstitutional, and that there is no reasonable legal defense the federal government can offer.  Therefore, DOJ will no longer defend DOMA in court (although the federal governement will continue to enforce this law that it believes is unconstitutional – how does that make sense?). Wow! 

     Federal DOMA is the law that defines marriage only as one man and one woman for all purposes of federal law. Activists who support redefining marriage to include same-sex couples have filed lawsuits challenging DOMA as unconstitutional.  President Obama now agrees with them and will no longer allow the federal government to defend that law.

   Paul Linton, a long time constitutional attorney, has written an excellent letter going through point by point to refute the letter from the Department of Justice explaining why the Defense of Marriage Act is allegedly unconstitutional.

       I summarize some of Paul Linton’s points here, adding my own comments to point out the host of reasonable arguments that the DOJ could make in defense of DOMA:

    – The U.S. Supreme Court rejected the legal arguments that the Constitution protects the right to redefine marriage to include same-sex couples in Baker v. Nelson, 409 U.S. 810 (1972).  This part of the letter gets into some technical details of Supreme Court practice, so suffice it to say, there is a summary decision by the U.S. Supreme Court that rejects every major constitutional claim to a right to same-sex “marriage.”  So,the Department of Justice lawyers could make the reasonable argument in court that the Supreme Court has already rejected the legal arguments currently used to challenge DOMA. This is an important legal argument DOJ could use in the lower courts, because they must follow Supreme Court precedent.

     - A number of federal and state courts in recent years have upheld the constitutionality of federal DOMA, or have rejected federal constitutional challenges to marriage laws defining marriage as one man and one woman.  Paul Linton lists them in his letter.  So, the lawyers for the federal government could defend DOMA by pointing out that many federal and state court decisions have already upheld federal DOMA. 

     -  Most courts have rejected the DOJ analysis that ”sexual orientation” is a suspect class like race under the Constitution -   The DOJ letter relies heavily on its own conclusion that ”sexual orientation” is a protected classification under the Constitution, like race is.  Most courts have rejected that conclusion.  The DOJ letter tries to distinguish those court decisions, and Paul Linton shows why the DOJ’s reasoning is defective. Even if the DOJ does not totally agree with those court decisions, it could rely on them to defend DOMA.  Also, the DOJ letter assumes that a marriage law constitutes “sexual orientation” discrimination, a very controversial and disputed conclusion. 

   In addition to Paul Linton’s excellent analysis, I would add the following points:

  -  The Department of Justice has vigorously defended DOMA in court recently – the DOJ letter ignores the fact that up until now, it has defended DOMA in court. The DOJ vigorously defended DOMA during President Bush’s administration.  Here is a link to one of the DOJ briefs from the Bush days that strongly defends DOMA.  The only change that accounts for this dramatic change has been the election of a new President, which is an insufficient reason for the federal government to pivot from its previous position defending the constitutionality of DOMA.

    - The Supreme Court has upheld Congress’ requirement that some states outlaw polygamy and define marriage as one man and one woman.  The Supreme Court has already upheld the constitutionality of the requirement Congress imposed on many incoming states that they must ban polygamy in their state constitutions as a condition of statehood.  The Supreme Court wrote this memorable passage explaining the authority the Constitution grants Congress to define marriage, even for incoming states:

[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent  progress in social and political improvement.

Murphy v. Ramsey, 114 U.S. 15, 45 (1885).

      Even if the Department of Justice disagrees with this ruling by the Supreme Court, it nonetheless provides an additional basis for defending DOMA in court.  Here the Supreme Court ruled that Congress can enact a law that defines marriage only as “one man and one woman,” in the Supreme Court’s words. The DOJ could use this to defend DOMA by arguing that the Supreme Court would have to distinguish Murphy v. Ramsey (as well as overrule Baker v. Nelson) in order to strike down the DOMA statute.  Such an argument would be important, if not decisive, at a lower court in defending DOMA because lower courts must follow Supreme Court precedent.

    – A marriage of a man and a woman is substantively different than two men or two women.    The DOJ letter fails to refute the important interest society has in marriage – children.  A man and a woman in a conjugal relationship have the potential to produce children, something no same-sex couple can ever do.  And children represent the future of a society. This is the main reason why societies throughout history and around the world have come to the same conclusion for the need to funnel the inevitable sexual activity of men and women into the public institution of marriage.  The procreative power of a man and a woman together is more than sufficient for the DOJ to argue that marriage serves a unique public purpose, so it is constitutional for Congress to limit the definition of marriage to one man and one woman in DOMA.   

 -   The President is supposed to defend federal laws, and lapsing from that duty could come back to haunt those who support the President’s actions with DOMA - the Department of Justice is part of the Executive branch and is supposed to defend federal laws.  Maybe in an extreme and rare case would DOJ decline to defend some federal law. But this is not some clearly unconstitutional law, like one segregating the races or proclaiming Lutheranism as the state religion of the U.S.  So this decision lowers and degrades the standard for DOJ to meet in order to refuse to defend a federal law.  If DOMA is unconstitutional merely based on this review by the DOJ, then a different president  elected in 2012 could  reverse course and defend DOMA in court, like the Bush DOJ did before President Obama came into office.  Such flipflopping erodes the authority of the Executive branch and sets a dangerous precedent that future presidents can use.  For example, a different president elected in 2012 could rely on President Obama’s decision to abandon DOMA to conclude that Obamacare violates the Constitution, and refuse to defend it, even though several courts have upheld it.  “He who rolls a stone will have a stone roll back on him.”  Proverbs 26:27.

       However, there is hope for DOMA’s continued defense.  The House of Representatives and/or the Senate have the authority to intervene in lawsuits to defend federal laws when the Justice Department refuses to do so.  The House of Representatives is considering such a move, possibly by Friday.  We’ll see what happens.  Stay tuned.