February 23, 2011

Defense of Marriage, ObamaCare and Kagan

Statement of CFJ Executive Director Curt Levey on today’s announcement that the Obama Administration will not defend the Defense of Marriage Act:

President Obama’s decision to abandon the Defense of Marriage Act (DOMA) is both outrageous – as a matter of Justice Department policy and constitutional law – and a miscalculation that will decreases the chances of ObamaCare being implemented, while potentially increasing calls for Supreme Court Justice Kagan to recuse herself from certain gay rights cases.

The President’s refusal to defend DOMA, a federal statute enacted by overwhelming margins in the Senate (85 - 14) and House (342 - 67) and signed into law by President Clinton, flies in the face of Justice Department policy and principles of democratic government. It has long been the Department’s policy to defend any challenged federal statute unless no plausible argument can be made in its defense. By ignoring that policy, President Obama is engaging in a disturbing power grab that, if taken to its logical conclusion, would allow him to undermine any duly enacted federal law that he doesn’t personally agree with.

But that’s not the worst of this power grab. In announcing the President’s decision, Attorney General Holder informed the nation that “the president has concluded that … sexual orientation should be subject to a more heightened standard of [constitutional] scrutiny.” In layman’s terms, that means that President Obama has decided that the Fourteenth Amendment’s Equal Protection Clause prohibits distinctions based on sexual orientation in the same way that it prohibits racial discrimination.

Of course, the authors of the Fourteenth Amendment would be quite surprised to learn that they had made same-sex marriage a constitutional imperative. However, even putting originalism and strict construction aside, it was heretofore accepted that only the judicial branch – particularly the Supreme Court – has the authority to determine the appropriate level of Fourteenth Amendment scrutiny and whether a particular piece of legislation meets that level of scrutiny.

Apparently, President Obama has now taken that authority upon himself. And this from an Administration that was outraged that Congressmen were even discussing the proper interpretation of the Fourteenth Amendment provision dealing with birthright citizenship.

This is not the first time that President Obama has shown he is willing to do an end run around the other branches of government in pursuit of his political agenda. His use of White House czars to circumvent the Senate confirmation process and of the EPA to circumvent legislative resistance to cap and trade should have forewarned us that he would attempt today’s end run around the judicial system.

Even if today’s end run succeeds, President Obama may come to regret it should he fail to win reelection. In that case, it will be up to a Republican president to defend ObamaCare against current and future constitutional challenges. Obama has just handed his successor a perfect excuse to effectively repeal or cripple ObamaCare by refusing to defend it in court.

Even in the short term, the President has strengthened the hand of ObamaCare opponents, particularly the many states that question its constitutionality and plan to resist its implementation. After abandoning DOMA, Obama has no moral authority to argue that, because ObamaCare is the law of the land, all government officials must enforce it unless and until the Supreme Court decides it’s unconstitutional.

Finally, even the President’s critics will concede that his conclusion about the proper level of constitutional scrutiny for sexual orientation – whether right or wrong – must have been based on legal research and analysis rather than just a sudden political whim. If so, Obama and Holder surely consulted the nation’s Solicitor General – the government’s top constitutional attorney – when conducting this important legal analysis. As a result, the Administration will be called upon to disclose whether Elena Kagan was still Solicitor General when this consultation began.

If the answer is yes and Kagan was involved in determining the federal government’s official position on the proper scrutiny for sexual orientation, it opens up an ethical can of worms for her concerning Supreme Court cases in which that standard is at issue. It’s a can of worms that Obama may come to regret.