The Wall Street Journal reports:
Several justices sharply challenged the Obama administration’s handling of the 1996 Defense of Marriage Act, which bars federal recognition of same-sex marriage. Some questioned whether the court should be hearing the case at all. …it wasn’t clear whether the justices believed they were free to rule on the merits of the case, amid questions about the legal standing of the parties.
The Obama administration said in 2011 that it believed the law was unconstitutional, but it has continued to enforce it while the case has worked its way through the courts. That stance drew sharp questioning from Chief Justice John Roberts. He told government lawyer Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower-court ruling that the Defense of Marriage Act was unconstitutional and yet enforce the law while seeking Supreme Court review “has never been done before,” Chief Justice Roberts said.
Justice Kennedy cited what he called the questionable practice of presidential signing statements, in which presidents sign a law but simultaneously issue statements that they consider parts of it unenforceable or unlawful. If a president doesn’t think a law is constitutional, he shouldn’t sign it, said Justice Kennedy. He added that the same principle perhaps applied in this case.
Based on the arguments, it seems that if the court can agree the parties have standing, Kennedy is poised to join the equal-protection liberals and strike down, on federalism grounds, the section of DOMA forbidding federal recognition of same-sex marriages in states where they are legal.
But what an irony if the court decides not to rule because of the Obama administration’s contradictory behavior of enforcing the law but refusing to defend it in court—a strategy meant to do the least political damage among religiously conservative voters (and yes, that includes many anti-gay African Americans) and LGBT activists by parsing the difference.
9 Comments for “Day Two: DOMA”
posted by Tom Scharbach on
But what an irony if the court decides not to rule because of the Obama administration’s contradictory behavior of enforcing the law but refusing to defend it in court—a strategy meant to do the least political damage among religiously conservative (and yes, anti-gay) African Americans and LGBT activists by parsing the difference.
Oh, you’d love it, Stephen. It would give you years and years worth of prattle about how the Evil Big Government Partisan-Master Himself was the worst enemy that left/liberal dupe gays and lesbians ever had …
But it won’t happen. It is all talk. If Justice Kennedy really believed that men in power should always act according to principle, without taking the practical effects of their actions into account (“If a president doesn’t think a law is constitutional, he shouldn’t sign it …), then Justice Kennedy wouldn’t be talking about dismissing the Prop 8 case as “improvidently granted” to protect the Court until the time is right to issue that decision. He’d insist on a 50-state marriage equality decision right now and let the chips fall.
posted by Michaels on
And yet another display of Roberts’ pettiness and “gotcha” jurisprudence was all there for everyone to see. “I don’t see why Obama didn’t have the conviction to go all the way,” my ass.
As if they’d have like that better. Really disgusting human being he is, the Chief Justice of the Supreme Court of the U.S.
posted by Tom Scharbach on
“As if they’d have like that better. ”
Oh, Roberts would have loved it.
As you may recall, the right was all over the President when he elected not to defend DOMA, claiming dereliction of duty. If the President had gone the next step and refused to enforce DOMA, there would have been an impeachment.
And Roberts could have preened as the presiding officer, unctuously proclaiming that it is the Court’s exclusive prerogative, not the President’s, to determine whether or not a law is constitutional.
“Really disgusting human being he is, the Chief Justice of the Supreme Court of the U.S.”
Oh, I’m certain that the Chief Justice is upright in his personal life. But his performance in the orals reminded me of the kid in fifth grade who didn’t want to get his jeans dirty sliding into base, preferring to sit on the sidelines sniping at the other kids for flubbing a play. You know the type.
Very useful, sometimes, to think about what the high and mighty were like as fifth graders.
posted by Jorge on
There’s a difference: impeachment is in the Constitution. Choosing not to enforce a law … well, I actually thought the amicus attorney had a good argument that it fits into the clause that the president will “take care” that the laws are faithfully enforced: the laws include the US Constitution. But we’ll see if that carries.
posted by Tom Scharbach on
You don’t think that the Republicans in the House would have pushed for an impeachment if the President announced that he would not enforce DOMA and took action consistent with that decision, such as ordering the DOD to grant full marital rights and benefits to gay and lesbian service personnel and their spouses?
I do, and I think they had the votes, ready and waiting. We’d have had the whole damn circus.
And this time around, it would have been about something real (like President Johnson’s failure to enforce the Tenure in Office Act, which led to his impeachment) instead of a “straight boys acting bad” comedy.
I actually thought the amicus attorney had a good argument that it fits into the clause that the president will “take care” that the laws are faithfully enforced: the laws include the US Constitution.
Of course he did. President Obama did exactly the right thing. He continued to enforce DOMA while bringing the case to the Court, so that the Court to do its job and decide on constitutionality.
I was surprised by Chief Justice Roberts’ blast at the President for enforcing the law until the constitutionality is properly decided by the courts, even if the President thinks that the law isn’t constitutional. Chief Justices have historically defended the prerogatives of the Court, not tossed them away like smelly socks.
Justice Kennedy’s comment — Presidents probably shouldn’t sign bills that they think are unconstitutional, but veto them instead and let Congress override the veto if it can — makes a point that is worth considering. It is more theoretical than practical (“parsing the difference“, as Stephen called it, is a part of the art of politics) but in a perfect world, Kennedy would be right.
But Kennedy’s comment had nothing to do with the case. President Obama didn’t sign DOMA. President Clinton signed it.
posted by Jorge on
You don’t think that the Republicans in the House would have pushed for an impeachment if the President announced that he would not enforce DOMA and took action consistent with that decision, such as ordering the DOD to grant full marital rights and benefits to gay and lesbian service personnel and their spouses?
Well, actually, I don’t, but that is not what I said. I merely said that if the Congress chose to impeach the President for something, they would be following the law, as some Justices and attorneys are hinting that the President is not yet with no way to rectify it. In actually, there is a strong argument that the President is following the law, and explicitly.
I believe that the Republicans would have funded an effort to sue the United States and have the courts issue an order for the President to enforce the law. A president can only be impeached for “high crimes and misdemeanors.” Enough congressmen would be concerned about the potential for a politically-motivated impeachment to turn into a double-edged sword. Remember, Bill Clinton was impeaced for actions he alleged took in defiance of the courts, and especially a crime: perjury. Is there any crime in refusing to enforce the laws of the United States if there is no corruption linked to it? I highly doubt it.
posted by Tom Scharbach on
Is there any crime in refusing to enforce the laws of the United States if there is no corruption linked to it? I highly doubt it.
All I can say is that Andrew Johnson was impeached on just that ground — refusing to enforce the laws of the United States with no corruption involved.
The Tenure of Office Act, passed over Johnson’s veto in 1867, stated that a president could not dismiss appointed officials without the consent of Congress. Johnson refused to enforce the Tenure of Office Act because he believed it to be unconstitutional, and removed Edwin Stanton from the cabinet. No corruption was involved, on Johnson’s part or Stanton’s.
posted by Hunter on
The Obama administration is enforcing DOMA; it is not defending it in the courts. I’ve seen that conflation several places, and it’s not valid.
There is also ample precedent for the executive branch to refuse to defend a law it feels is unconstitutional — including one under President George H. W. Bush, who refused to defend an affirmative action law granting preference to minorities for broadcast licenses, at the behest of his solicitor general — John Roberts. (The Court upheld the law.)
posted by Mike in Houston on
It’s especially irksome given Chief Justice Roberts own history regarding this type of action — he, after all, as Soliticitor General refused to defend a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Roberts signed a brief arguing that the law was unconstitutional. Ultimately, the law Roberts refused to defend was upheld by the Supreme Court.
It should also be noted that the Bush administration, while not defending the law did enforce it — which was what triggered the lawsuit to begin with.
Sound familiar?