Will Obama’s DOMA Decision Backfire?
February 25th, 2011
That’s what Daily Beast’s Eve Conant and Daniel Stone seem to think after talking with ant-gay activists who see an opening in the Administration’s new stand on defending the so-called “Defense of Marriage Act” in the courts.
By failing to defend marriage, the administration may open the door for those passionately opposed to gay marriage to have what they feel they’ve been lacking: a stronger legal voice. In Massachusetts, which is also in the midst of a legal challenge to DOMA, traditional marriage activists, after the initial shock, are finding themselves equally emboldened. Kris Mineau of the Massachusetts Family Institute says, “It’s a horrible situation when the president and the attorney general refuse to carry out their constitutional duties. We are now asking Congress to do its job.” But he says the law, in his view, “says that under unusual circumstances people who are friends of the court can participate in oral arguments.” Previously barred from doing so in the state’s key DOMA challenge, Gill v. Office of Personnel Management, he says, his legal team is working on documents to take part in oral arguments “with real resources and with people who have a passion for success” in battling gay marriage. Mineau says the government’s defense of DOMA thus far “has amounted to something along the lines of ‘we’re personally against DOMA but we’re here today to defend it.'” That watered-down approach, he says, left traditional marriage supporters feeling hopeless.
If the Justice Department’s stand that DOMA should fall under heightened scrutiny holds sway in the courts, then groups like Massachusetts Family Institute with their impassioned position against same-sex marriage would actually prove the Administration’s case under one important aspect of heightened scrutiny: a history of discrimination. We already saw how well this played out so far in California, where widespread evidence of discrimination and expressions of anti-gay bigotry became important pivots on which Federal Judge Vaughn Walker’s decision rested.
On the other hand, Conant and Stone argue that the GOP-led House could try to take the case completely out of the DOJ’s hands altogether so that they would not even be present in court to argue for heightened scrutiny:
Committee lawyers have been summoned early next week to meet with Boehner and other officials to discuss their options. One leading strategy would be to stage a sort of legislative intervention, in which Congress’ counsel would remove the Justice Department’s authority to defend DOMA.
Administration officials aren’t opposed to that idea. In a letter to Boehner, Attorney General Eric Holder suggested Republican leaders appoint more lawyers to defend the law themselves, without Justice attorneys.
I see two potential problems here: If Congress were to intervene and remove DOJ’s authority to defend DOMA, wouldn’t the Democratic-controlled Senate have to go along with it? And secondly, as I read Attorney General Eric Holder’s letter, I don’t get the sense that he agrees that DOJ should be removed altogether from defending DOMA or that Republicans leaders should defend the law themselves “without Justice attorneys,” as if Justice would be willing to voluntarily step aside. “We will remain parties to the case and continue to represent the interests of the United States throughout the litigation,” he clearly added, after acknowledging that Congress can play a role in defending the statute.