Christine M. Flowers: Administration plays way too cute on gay-marriage law

Posted: March 04, 2011

MAYBE President Obama should rename the DOJ.

Instead of the Department of Justice, just call it the Department of Just-This. As in his attorneys will defend this law in court. And this one.

And maybe this one.

But not that one, because they don't agree with it.

In fact, if they don't like a law, even though it's presumptively constitutional and the Congress hasn't made any move to amend or suspend it, they can declare it non grata at the White House.

That's exactly what happened last week when Eric Holder wrote a letter to House Speaker John Boehner informing him that the executive branch was no longer going to defend the Defense of Marriage Act in court.

DOMA, passed by a majority of representatives from both parties and signed by Bill Clinton in 1996, defines "marriage" as a heterosexual union between one man and one woman. It also allows any state not to recognize gay marriages performed in other states where they are legal.

But, with Obama's recent gyrations on gay marriage and with the politically motivated upper echelons of DOJ opposing the law, they're claiming it's unconstitutional. (At least one low-level federal judge - from Massachusetts, naturally - agrees with them. On the other hand, two presidents, including the Democrat who signed it, don't.)

But that's really not the point.

One of the most basic responsibilities of the Justice Department is to defend statutes against federal court challenges unless and until they've been overturned by an act of Congress or declared unconstitutional by the Supreme Court.

The department doesn't have the right to pick and choose what laws it will honor and what laws it will be pressured into ignoring by some large and politically powerful special-interest groups.

It's not allowed to frustrate the efforts of the Congress, usurp the role of the judiciary and impose its own definition of "justice" on We the People.

I can't be the only person dismayed by the arrogance of this decision, and certainly not the only lawyer. The president and his attorney general are challenging the way this country resolves the constitutionality of legislation, and creating a shortcut that will end up violating every principle we're taught in law school.

And that includes the Harvard law grad gearing up his run for re-election who now seems to think that shoring up his far-left base is more important than the oath he took to protect and defend the Constitution a mere two years ago.

This has nothing whatsoever to do with the substantive merits of DOMA. Personally, I don't think it's unconstitutional but I would abide by a Supreme Court ruling overturning the law, or limiting its scope.

I would also bow to a legislative overhaul, which, as in the case of don't-ask, don't-tell, would make it obsolete.

But what I can't do, and what no honest American should either, is allow the executive branch to base its legal policies on its political needs.

It's naïve to believe that Obama and his crew have only now come to the constitutional epiphany that DOMA violates the equal-protection clause. It's been around for 15 years now, and Eric Holder was in the trenches when his former boss Bill Clinton signed it into law.

If he had a problem with its legality, we should have heard that way before now - and not waited until 21 months before the next presidential election.

And Obama is right there with him, looking at the political landscape while making pronouncements like "Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does."

The president should take a refresher course in equal protection. Just because a group is treated differently does not automatically make that discrimination. There might be compelling reasons for the distinction, and only by litigating the issue to the top court of the land do we get the definitive answer. And any "constitutional law prof" like the one in the Oval Office knows that - or should.

The administration has told Congress that it can defend its own laws from now on. This is the exact quote from the letter that Holder sent to Boehner:

"Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity in the litigation." In other words, pay for it yourself, Bud.

Some have tried to muddy the waters by saying the DOJ will still enforce the law on the books. But I seem to remember another case in which the DOJ essentially let some Black Panthers off with a slap on the wrist, frustrating the Voting Rights Act. So just imagine how efficiently it's going to enforce a law it really doesn't like.

The Department of Just-This is playing politics. And woe unto us for the consequences.

Christine M. Flowers is a lawyer. E-mail She blogs at

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