To have and to hold; to enforce, but not defend … the partisan clash over the Defense of Marriage Act

There is an intriguing battle going on over the Defense of Marriage Act (DOMA), one that stands a good chance of stirring the 2012 presidential election campaign.

Here are the details. Last year, federal judge Joseph Tauro, a Richard Nixon appointee, ruled the 1996 law, which defines marriage strictly as between a man and a woman, unconstitutional. Using the familiar “rational basis” test as the standard to determine whether the disparate impact of a law on one group over another can be constitutionally justified, Tauro found DOMA in violation of equal protection.  “There exists no fairly conceivable set of facts that could ground a rational relationship between DOMA and a legitimate government objective,” he wrote.

Photo from Wikimedia Commons

The judge also saw DOMA as inconsistent with the Tenth Amendment principle of state sovereignty.  By denying same-sex couples legally married in Massachusetts the same rights that heterosexual couples enjoy (Social Security, etc.), the federal government was, he argued, intruding on the ability of the state of Massachusetts to define the marital status of its own citizens.

Tauro’s ruling put the Obama administration in an interesting position: both the president and Attorney General Eric Holder tended to agree with the judge – they, too, saw DOMA as constitutionally suspect – but as the government’s chief law enforcement officer, Holder was required to enforce the law. His reaction was to enforce, yes, but not defend. In an unusual move, Holder announced that while the federal government would continue to treat same-sex marriages as unequal to heterosexual marriages, just as DOMA required, the Justice Department would nonetheless refuse to represent DOMA on appeal, essentially ceding the argument to those who would challenge it.

As justification for his action, President Obama could claim that he swore an oath to “preserve, protect, and defend” the Constitution of the United States and, to him, DOMA is an affront to the Constitution. But DOMA supporters could just as easily say that the President is disregarding his responsibility as chief executive to defend Acts of Congress that have been faithfully signed into law. Otherwise, anyone elected to the nation’s highest office could simply pick and choose which law he or she liked and be done with the rest of it.

In response to the Obama administration’s decision, Speaker of the House John Boehner announced that if Obama would not defend DOMA, then the House Republicans would. He recommended that the House’s Bi-partisan Legal Advisory Group (BLAG), which is controlled by the Republican majority, take on DOMA’s defense. BLAG then hired former Solicitor General Paul Clement to defend the law on appeal. It might seem like House Republicans defending a Congressional statute in court would be a colossal breach of the separation of powers, and it may well be, but to justify their standing Clement and BLAG will lean on the Court’s 1983 decision in INS v Chadha, which said that “Congress is the proper party to defend the validity of a statute” when the enforcing agency sides with the plaintiff in regarding the statute as “inapplicable or unconstitutional.”

The battle over DOMA also rages in other venues. Two weeks ago, the Senate Judiciary Committee voted along party lines to repeal the law. But since there is not a filibuster-proof Senate super-majority in favor of repeal (and a repeal would have proportionately even less support in the House) the move has little chance of succeeding out of committee.

Meanwhile, on the other side of the divide, DOMA supporters, anticipating defeat in the Supreme Court, are looking for ways to “constitutionalize” their law, perhaps by advancing it to become the 28th Amendment. Would the country support such a dramatic move? Unlikely — any proposed constitutional amendment faces a tough battle for ratification — but who knows? Since DOMA was passed, six states and the District of Columbia have moved to recognize same-sex unions, but 31 other states have voted to prohibit them.

Todd Brewster is the Director of the National Constitution Center’s Peter Jennings Project and the Center for Oral History at West Point.