Last week, Republican Speaker of the House John Boehner announced he would in fact spend your tax dollars to hire private lawyers to defend DOMA, the 1996 Defense of Marriage Act already declared unconstitutional by a sitting federal district judge. Some conservatives applauded this action, while liberals and others decried the waste of the people’s time and money (a great deal of money at that) on a social agenda that does not create jobs — except perhaps for trial attorneys — and reinforces the false concept that gays, lesbians, and bisexuals should be treated as second-class citizens.
But after great consideration, I say, bring it on!
DOMA is a grossly unconstitutional law that serves no just legal purpose. It has been rightly deemed unconstitutional, and I have full faith that it will be deemed unconstitutional again, this time at every one of the current ten or more DOMA challenges currently making their way through the federal courts.
Read: “The GOP’s Sanctimonious Defense Of The Sanctity Of DOMA“
Given Monday’s news that this week, a bill to repeal DOMA will be introduced into the Republican-held House, and as we await a companion DOMA repeal bill that will be introduced by Senator Feinstein into the Senate, the only certain way we can remove the shackles of DOMA is through the courts, as there is no way we will pass a DOMA repeal bill in this Republican-controlled House and in a pre-presidential election year Senate.
I reached out to Evan Wolfson, the founder of Freedom To Marry, and the man considered to be the father of the modern-day marriage equality movement, and asked him what he thought about the Republican House’s decision to defend DOMA in court. He responds:
“The President and Attorney General had it right when they said that morally and legally, the discriminatory so-called ‘Defense of Marriage Act’ is indefensible. Whatever legal briefs the House leadership pays for — out of our tax dollars — will only be able to rehash the anti-gay arguments and absence of evidence that led the Administration — and the Nixon-appointed federal judge who ruled against DOMA at the trial level — to conclude that DOMA is unconstitutional. And that rehashing won’t make DOMA any more palatable .. or constitutional.”
I whole-heartedly agree.
One of the reasons we can and should let the Republicans be the ones to try to defend DOMA in court is the fact that we need to educate America about why DOMA is unconstitutional, and about why the law should be on our side. As if to prove my point, I came across a well-written but terribly misguided letter-to-the-editor in a local Kansas newspaper, titled, “Going Against God.”
The letter begins,
“President Obama’s decision to subvert the law and usurp the prerogatives of the Federal Judiciary by declaring the Defense of Marriage Act (DOMA) to be unconstitutional should be cause for great concern for Bible-believing Americans.”
As many people know, the country is not ruled by the law of God but by the law of man, and any attempt to introduce biblical law into the books must be as vigorously fought on the left as the right is fighting the false specter of Sharia law introduction into America jurisprudence. And this decision neither “subverts the law” nor “usurps the prerogatives of the judiciary.”
The writer continues with,
“The president announced that the Department of Justice would no longer defend DOMA. By deeming the Defense of Marriage Act to be indefensible and unconstitutional, President Obama has once again exposed his willingness to subvert the checks and balances at the heart of our Constitution.”
Stop right there sir! It is critical that we spread the word that a president has the legal right to not defend laws in court. While the executive branch must enforce the laws, it is under no obligation to defend them if they believe them to be unconstitutional, as this president, the attorney general, and a federal judge have all stated.
He continues,
“This, in spite of the fact that DOMA has been in federal law since 1996 – and has withstood many court challenges. The president and his attorney general have a duty to defend lawfully passed legislation, especially when the essence of the law has been upheld by many courts.”
Wrong, wrong, wrong!
Again, presidents have a duty to enforce, but not defend the law in court.
We absolutely must make absolutely clear that other presidents have refused to defend laws they believed unconstitutional also, including Presidents Eisenhower, Kennedy, Truman, Ford, Clinton, Bush 41, Bush 43, and yes, Reagan.
NPR’s Nina Totenberg explains:
“During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote. Solicitor General Kenneth Starr was recused in the case, so the lead counsel for the government in the case was Starr’s deputy, a fellow by the name of John Roberts, now the chief justice of the United States.”
Getting back to our letter-to-the-editor writer, who says,
“Thirty states have passed marriage amendments affirming marriage as the union of one man and one woman. Attorney General Eric Holder justifying his position says that in the congressional debates there were ‘numerous expressions reflecting moral disapproval of gays and lesbians and their intimate family relationships.’ He went on to describe this as ‘animus,’ or hatred.”
“There is no hate coming from Christians on this issue. God loves everyone. God’s moral laws are the best way for us to live as a society. Our Constitution and the Declaration of Independence were set up by God-fearing, Bible-believing Christians. God, through his book the Bible, says homosexuality is morally wrong. We love the sinner but not the sin. Ninety-eight percent of places of worship in America are Christian churches. Our president is going against the majority once again.”
Again, the laws of man and the relationship of man to god in America are neither congruous nor should they be. In other words, keep your bible out of my civil laws!
And, as an aside, yes there is hate, there has been hate, oh, so much hate and animus. And majority rule is never a good idea when it comes to the civil rights of the minority. It was Thomas Jefferson, one of our founding fathers the tea party likes to quote so much these days, who wrote, “that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.â€
Read: “Hate Group American Family Association: DOMA Is Unconstitutional”
Our letter writer ends with,
“The president and the attorney general took oaths to defend the Constitution. The arrogance demonstrated by them we can only hope awakens a deep resolve among patriotic citizens. God, who put us here to have a personal relationship with him, to spread his love and live with him forever, says it’s wrong. Our best chance of living a life of love and prosperity is to follow God’s word. Please don’t say, “What is the big deal, who cares whether gays get to marry?” God makes the rules. Our society and our families will benefit if we follow God’s word and not the words of man. A man, our president, is saying it’s OK for gays to marry, going against God’s word. Most of us live such a soft, spoiled life. We forget the blood, sweat and tears it’s taken to make our country great. Please, America, stand for what God says is the right and wrong ways to live.”
Let me remind this writer, and the public at large, that the president, sadly, has not said he supports marriage equality, or “gay marriage.” And also let me remind everyone, DOMA is not in the Constitution. You know, it’s so funny how modern-day self-professed “tea party patriots” and social conservatives (and the House Republicans) claim all of a sudden they need to know “where in the Constitution does it say…” yet they are so unfamiliar with the Constitution!
Bottom line, Obama has no legal requirement to defend DOMA. DOMA is not a part of the Constitution. Almost every president since Truman has refused to defend one law or another.
So, let the House Republicans spend the people’s time and money on defending DOMA. They will quickly learn unconstitutional laws are indefensible, they will lose, and we will be free of DOMA.