Switching Horses In The Middle Of The Stream

Contrary to the common belief, the Barack Obama/Eric Holder decision not to defend the Defense of Marriage Act is not unprecedented. But such an action is extremely rare, and previous turnarounds almost always involved a decision by the Supreme Court in a related matter. Either way, I find the decision to be both reprehensible and predictable.

First of all, let me make it clear that I have expressed my opinion that the Defense of Marriage Act (DOMA) was unconstitutional. And unlike liberals and misled conservatives who base a concurring opinion on "equal protection" or "denial of due process," my reasoning is quite different. I think that the federal government has no business telling the states which laws relating to marriage they must recognize from other states. I am a federalist, and damned near a zealous purist about it. If a definition of marriage belongs anywhere in government, it belongs at the state level and not the federal level (except in federal jurisdictions, of course).

The purpose of DOMA was to stave off application of the "full faith and credit" clause which theoretically would require a non-gay marriage state to recognize a marriage performed in a gay marriage state. I totally sympathize with the intent, but I can't sanction the method. Full faith and credit requires a state to recognize the decisions of another state, unless to do so would "shock the conscience of the public" or require the recognition of a law which directly contradicts the objecting state's law and has no basis in the application of a basic constitutional right. The last time I looked, marriage is not a basic constitutional right, and that leaves a state free to make its own marriage laws and reject those of others. So until the Supreme Court rules on [gay] marriage based on the current equal protection and due process arguments, and/or the full faith and credit argument, no state need recognize the gay marriages of another state.

But that's not what this article is about. I first needed to establish that there are several different legal points of view on DOMA, of which my federalist argument is only one. More importantly, I used it to point out that the Obama/Holder decision had next to nothing to do with the law or the Constitution, and everything to do with politics and soothing the savage breast of the Democratic left which believes that Obama has moved too far to the center. The Democratic Party is bleeding votes like a sliced artery, and they needed to put a band-aid on the wound.

Holder's Justice Department has announced that even without the President's change of heart on the issue (oh, yeah?), the DOJ had no choice but to drop the government's defense of DOMA. Aw, baloney. They always have a choice. More importantly, they have an obligation to defend the laws of the United States, whether they personally like them or not. Holder's justification is as follows: "After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that . . . the legislative record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships, precisely the kind of stereotype the Equal Protection Clause is designed to guard against."

So, the two constitutional geniuses have come up with a purely political argument for applying the equal protection clause. But at least they found something in the Constitution they so routinely disregard to hang their fedoras on. But DOMA was designed solely to protect against enforcement of the full faith and credit clause, not the equal protection clause. Whatever "expressions" were made during the legislative process, the legislation itself contains no such wording. That's largely because a substantial number of Democrats who support gay causes found no corresponding reason to support gay marriage. And it was a Democratic president, Bill Clinton, who is very gay-friendly who signed the bill. Did they miss all that "animus toward gays?"

Want more proof that this was a political move? Holder will not defend DOMA because it is the Justice Department's legal opinion that the law is unconstitutional. But he also made it clear that he would continue to enforce the law until a court of competent jurisdiction calls it unconstitutional. So he's merrily dropping the will of the American people through their elected representatives and their president that he defend the law, but has no problem enforcing an unconstitutional law. Either he has an obligation to defend the law or an obligation to refuse to enforce it, but he can't have both.

Some of you may be wondering why Holder doesn't simply switch sides. That's what politicians do, but lawyers are ethically and legally forbidden to do so without court approval and the consent of the opposition. That's not bloody likely to happen. So he chose to pretend to be a good cop and a better humanitarian. That's one of the few things to surprise me about this reversal of position. Former Deputy Attorney General and current Massachusetts Governor Deval Patrick did exactly what is forbidden when the Bush I administration morphed into the Clinton administration. The issue was far less controversial, and the two sides weren't poles apart, but he still switched sides in the middle of litigation and nobody called him on it.

As Attorney General of the State of California, now Governor Jerry Brown refused to defend Proposition 8. I was disgusted, but he was under no constitutional obligation to do so. With California's oddball election system, governors, lieutenant governors and attorneys general are often from different parties. The state constitution imposes no obligation on a Democratic Attorney General to defend challenged laws passed by Republican legislatures and signed by Republican governors or passed by the people via initiative (such as Prop 8). The result is that it is not uncommon at all for the government to have to go to outside counsel to defend its laws.

That is not how it works at the federal level. Law and precedent impel but do not compel attorneys general to defend the government. The Constitution compels the executive branch to "faithfully execute the laws." In almost every case, that has meant that when a law of Congress is challenged, the US Attorney General defends it. So why gay marriage, and why now? Was Obama hiking on the road to Damascus when he reached his decision? Was Holder satisfied with getting away with dismissing voter intimidation cases against Black Panthers when the cases had already gone to judgment? Did the drugs wear off? Who knows, but it stinks of political maneuvering to me.

To be fair, Holder has said and implied that he believes in the rule of law and therefore the matter should be decided by the Supreme Court. Hogwash. The Supreme Court will decide the matter on the arguments of the government and the opposition. If the government puts up no case through its attorney general, the result is very likely the political outcome Obama and Holder want. DOJ dithered and diddled while the California Prop 8 case is making its way through the appellate courts and undoubtedly the Supreme Court. Considerable time has been wasted while the identical twins put their fingers in the air to see which way the wind was blowing. And that's the largest reason why they suddenly discovered the equal protection clause just as they were in trouble with their leftist base. DOMA has taken a back seat to the litigation of Prop 8.

The job of a lawyer is to defend his client's interests. I've defended murderers and robbers, and it had nothing to do with whether I liked them or their crimes or not. I did it because I believe in the constitutional right of every American to be allowed his day in court and a defense. Holder loves the Constitution so much that he won't defend his client's interest in court despite over two hundred years of precedent, but he will continue to enforce the law passed in his client's interest. That's nothing short of legal schizophrenia--or politics.

As for the picture accompanying the article, I couldn't resist. It was taken at a pro-gay marriage, anti-Prop 8 rally in San Francisco. My question was immediately "does this guy know what sharia actually means, and what will happen to gays if Muslims ever succeed in getting sharia law imposed?"