Boehner Gets It Right

by David Link on March 10, 2011

John Boehner and his House of Representatives will defend Section 3 of DOMA, no surprise to anyone.

In his statement, Boehner says, “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”  The cheap shot at the President is to be expected from a fellow politician.  Certainly, Boehner knows perfectly well that no president could finally decide unilaterally whether a law is or is not unconstitutional, and Obama hasn’t made any claim like that.  The President can offer the court his opinion, just as Boehner and his lawyers will, but in our constitutional system it’s up to the courts to make the final call about such things.

Interestingly, Boehner does mention that ultimate authority of the judicial branch, which is strange because that authority is, to the most conservative members of his party, a one-way ratchet.  To their way of thinking, courts have authority to declare DOMA constitutional, but if they declare it unconstitutional, they will be judicial activists, defying the elected branches.  That charge is as predictable as the sun rising in the east.

So now we have a situation where the Speaker of the House differs with the President about a law’s constitutionality.  If the courts rule Section 3 unconstitutional, then, how would anyone determine whether the court got it right?  The president who signed the bill isn’t in office any more, and the one who is says that, in his opinion, Section 3 is unconstitutional.  The current leader of the House says it isn’t.  How do you determine whether a court is activist or not if different political branches are of divided opinion?

This is exactly the reason making the judicial branch independent of the political branches was so profoundly important to America’s success.  Politicians always disagree, sometimes for good reasons, sometimes for bad reasons, and sometimes for no reason at all.  When it comes to the law, someone has to resolve differences of opinion, even if those differences arise over time.  Courts are, above all, an institution that needs to transcend politics, as best they can, being composed of fallible human beings.

The constitutionality of Section 3 will now be both properly defended and properly challenged in the judicial branch, and it will be properly decided there.  Boehner is right that the courts are the correct place for such a ruling, and I think we have a right to expect him to be consistent about that when the courts do make their final decision.

{ 10 comments }

Amicus March 10, 2011 at 7:18 pm

David,

How are you going to feel when they hire, say, Cleta Mitchell, with your tax dollars?

Ken Starr?

Tom March 10, 2011 at 10:23 pm

Ken Starr?

… would give Section 3 of DOMA a consummate defense. Starr, whatever else you might think of him, was one of the best appellate lawyers in the country when he was in private practice, and his defense of the Prop8 appeal before the California Supreme Court was masterful.

I’d much rather see Starr hired as special counsel than one of the dorks from the far-right advocacy law firms. At least with Starr, we’d get value for our tax dollars.

Amicus March 11, 2011 at 5:59 am

Ken Starr is the far-right on gay rights, whatever one believes about his mastery.

BobN March 10, 2011 at 7:55 pm

First of all, Boehner’s quest is to diminish and impede Obama. We have absolutely no idea what he thinks about the constitutionality of Section 3. Frankly, I’d love to hear him articulate his position beyond the usual “defending the family” tripe. There’s no chance of that, of course.

The courts aren’t the “only” place that decides constitutionality. The Congress itself can and has changed laws because it too realized that the existing situation was unconstitutional. A Speaker who represented the American people — 70% of whom support rights for gay couples — would work on changing a discriminatory law. All Boehner does is tear up at the prospect of motivating his base.

TELEVISE the trials!

Chuck Anziulewicz March 10, 2011 at 8:13 pm

If part of President Obama’s job is to “preserve, protect, and defend the Constitution,” he made the right call.

There was never any point in defending something as clearly unconstitutional as DOMA. This law sets up differing legal standards for Gay and Straight couples, thus violating the 14th Amendment. Because of DOMA, even Gay couples who are legally married in Iowa or Massachusetts are unrecognized by the federal government for the purposes of tax law and Social Security.

Also, unlike married Straight couples, married Gay couples become “UN-married” if they move across state lines, so DOMA violates the “Full Faith & Credit” clause.

Heck, even a lawyer with the American Family Association has admitted that DOMA is “probably unconstitutional.” Details are here:
http://www.advocate.com/News/Daily_News/2011/03/01/AFAs_Lawyer_Says_DOMA_Is_Unconstitutional

By its own actions, the federal government has made marriage a federal issue. Most of the legal benefits of marriage are bestowed by the federal government. You can argue about religion and parenthood until the cows come home, and it will not negate the fact that there is simply no constitutional justification for denying law-abiding, taxpaying Gay couples the same legal benefits that Straight couples have always taken for granted.

David Link March 10, 2011 at 10:11 pm

Amicus, my tax dollars are also going to the DOJ, so I guess it would be a wash for me.

Amicus March 11, 2011 at 6:03 am

I don’t follow. Do you mean that Justice Dept has recovered from Monica Goodling, et. al.?

It’s possible. I honestly don’t know, but suspect that not nearly enough time has passed for it to be true …

Amicus March 11, 2011 at 7:02 am

Here’s another perspective.

What would be your back-of-the-envelop estimate for how much this will cost?

I don’t know how successfully they can simply drag out the appeals process in hopes for a better outcome at the next election (slow burn, low cost), but I could guess that, by the time it is done, it could be 10% of the budget for the DOJ’s Civil Rights division…

KipEsquire March 10, 2011 at 10:23 pm

Except of course for the pesky fact that there is absolutely nothing in Article I giving Congress, let alone a single Chamber, double let alone a committee of a single Chamber, any authority whatsoever to defend anything in an Article III court.

Therefore, to say that this kabuki theater is oh-so-constitutional is rather myopic.

Houndentenor March 10, 2011 at 11:33 pm

I can’t wait for this one. Boner is going to hire lawyers to claim that the federal government knows better than the states who should and who should not be issued a marriage license. There goes their states’ rights plank (as if they ever really believed that).

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