(Conn Carroll/The Heritage Foundation) – This Wednesday, Attorney General Eric Holder sent his own version of a “Dear John” letter to the Speaker of the House, informing him that President Barack Obama’s Justice Department will no longer defend the Defense of Marriage Act (DOMA) in federal court. The letter clearly states that the decision was personally made by the President himself, who, supposedly just this week, came to the conclusion that DOMA violates “the equal protection component of the Fifth Amendment” of the U.S Constitution. This purely partisan act is completely consistent with both President Obama’s unprecedented politicization of the Justice Department and the same-sex marriage movement’s end-run around for democracy.
DOMA was enacted by overwhelming majorities of both houses of Congress and signed into law by President Bill Clinton in 1996. DOMA has two core provisions. First, it defines the words marriage, spouse, husband, and wife wherever they appear in the U.S. Code as referring only to the union of a man or a woman. Second, it defends the right of each state not to be forced to accept the redefinition of marriage in a handful of other states as a result of state court decisions or laws. Nearly 40 states have enacted state-level DOMAs, and 31 have embraced traditional marriage in their state constitutions. No state’s voters have ever voted to the contrary.
President Obama knows all of this. He also knows that his Administration’s litany of failures (unemployment above 8 percent, Guantanamo still open, exploding debt, etc.) has weakened him politically. By now asserting that there is no rational case for defending marriage as the union of one man and one woman, President Obama is echoing the claims of same-sex marriage advocated who portray the defenders of traditional marriage as irrational and bigoted. Nothing could be further from the truth. As Heritage Foundation Senior Research Fellow Chuck Donovan explains, defense of traditional marriage is not only rational but a cornerstone of civil society:
Marriage is the cornerstone in an archway of values that form the constitution of the family and the foundation of civil society. To its advocates as an institution with a pre-political meaning, it is not an entity created by the state but rather one recognized by the state. It is not about one family, but the coming together of two families, whose role in begetting and bearing children make them not merely part of a community but the creators of community. The community they create is not time-bound, but existing across generations. … What is at stake is the whole task of society to ensure that as many children as possible are raised by their mothers and fathers.
There is one silver lining in the President’s decision to call the vast majority of Americans who believe in traditional marriage bigots: Congress now has the opportunity to offer a real defense of marriage in court. Up to this date, the Obama Administration’s fraudulent defense of DOMA in federal court has been characterized by even supporters of same-sex marriage as “collusive litigation.” Congress should defend its rights as a co-equal branch of government under the United States Constitution and fight for marriage.
This does not mean that Congress needs to vote on DOMA again. DOMA is still good law. It does mean that Congress needs to act to make sure DOMA has effective and aggressive defense in court. Members of Congress, should seek to intervene in the case to assure that DOMA gets the vigorous defense that should be afforded to all federal statutes for which reasonable legal arguments may be offered—and that the President is refusing to provide.