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DOMA Is Not Roe v. Wade

March 02, 2011 By: Scott Spiegel Category: Gay Rights

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President Obama announced last week that his Attorney General Eric Holder would no longer be defending the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which Congress passed in 1996.

His declaration may have had something to do with the fact that Ninth Circuit Court Justice Stephen Reinhardt and federal trial judge Joseph Tauro of Massachusetts ruled across three separate cases in 2009 and 2010 that DOMA was unconstitutional.

Obama’s Justice Department will be submitting its official response next week to two fresh lawsuits against DOMA filed last year in New York and Connecticut.  The Department is not expected to argue in favor of the law’s constitutionality.

Constitution-revering conservatives have responded to Obama’s announcement by howling that there is no precedent for his declaration in all of American history, that Obama is overturning DOMA just because he doesn’t like it, and that his actions may be grounds for impeachment.

Jonah Goldberg of National Review claimed Obama has “thrown in the towel on the Constitution.”  On her radio show, Monica Crowley stooped to the level of Wisconsin pro-union protestors by labeling the president “Oba-Mubarak.”

Newt Gingrich declared that Obama’s actions could lead to a constitutional crisis.  He offered the hypothetical counterexample of President Sarah Palin declaring that she doesn’t like Roe v. Wade, thinks it’s unconstitutional, and will no longer allow the executive to enforce the right to an abortion.

There’s just one little difference between the Obama and Gingrich scenarios: no court has ever ruled Roe v. Wade unconstitutional.

The Supreme Court, the highest court in the land, had the last word on that matter in 1973, and no lower court or the Supreme Court has declared the unconstitutionality of the fundamental right to an abortion since then.  State courts have chipped away at the edges of the ruling and allowed restrictions on abortion, some of which the Supreme Court has upheld, but no court has ever reversed the Supreme Court’s ruling on the basic right to an abortion.  In fact, because the Supreme Court has already ruled on the matter, only that court would be able to reverse its 1973 ruling.

In the Gingrich scenario, Palin would indeed be imposing her preference on the nation illegally.

In the Obama scenario, in contrast, his Justice Department would be upholding the interpretation of the law offered by two members of the judiciary in three different court cases.

Obama hasn’t even said his Justice Department isn’t going to enforce the law—only that it will not be arguing in court that the law is constitutional.  Which, you may remember, is what two of the highest courts in the land to rule on the constitutionality of DOMA have found in three separate cases.

Even after Obama’s announcement, courts will still be able to rule on DOMA, regardless of the arguments Eric Holder declines to proffer in support of it.  Outside parties, including Congressmen who support the law, will still be able to file friend-of-the-court briefs outlining the exact same by-now-familiar arguments the Justice Department will no longer be citing.

Other conservatives who are upset with Obama’s actions have argued that Florida District Court Justice Roger Vinson recently found ObamaCare unconstitutional, yet Obama is still implementing that law.

Well, yes—clearly Obama is ideologically disposed toward overturning DOMA and not Roe v. Wade or ObamaCare.  But that doesn’t mean he does not have the prerogative to disavow the identified-as-unconstitutional DOMA, or the obligation to uphold the never-identified-as-unconstitutional Roe v. Wade.

As for ObamaCare, two justices had already (ludicrously) upheld the constitutionality of ObamaCare before Virginia District Justice Henry Hudson ruled the individual mandate component of the bill unconstitutional last December, and before Justice Vinson ruled the entire bill unconstitutional in January.  So while one would hope for Obama to take Hudson and Vinson’s cues once their rulings came down, one wouldn’t hold one’s breath.  A third justice has since found ObamaCare constitutional, which sadly gives liberals more cover for continuing to defend ObamaCare until the Supreme Court rules on it.

In the same interview in which he claimed Obama couldn’t decline to enforce DOMA, Gingrich declared that Justice Vinson’s ruling represented “solid grounds for the House to cut off all funding for implementation.”  Apparently the link between Gingrich’s stances on DOMA and ObamaCare was that both criticized supposedly unconstitutional actions of Obama’s.  Yet evidently Justice Reinhardt and Tauro’s rulings on the unconstitutionality of DOMA didn’t figure into Gingrich’s equation.

Other conservatives have questioned the timing of Obama’s announcement, suggesting that it was made to distract voters from the economy or set a trap for Republicans—as though this determined the propriety of Obama’s non-enforcement of a law.  Gingrich noted that Obama had campaigned for president in opposition to gay marriage and promised to uphold DOMA, and is therefore breaking a campaign pledge—again, as though this has anything to do with the legality of Obama’s decision not to defend the law.

Without trying to read Obama’s mind, I can say only that his motives for no longer defending DOMA have absolutely nothing to do with the constitutional appropriateness of his decision.

Here are some hypothetical actions that would be unconstitutional if Obama actually took them: Not enforcing DOMA after the Supreme Court ruled it constitutional.  Enforcing DOMA after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after Congress cut off funding for implementing it.

But deciding not to defend an argument behind one section of a law while still enforcing it, when two of the highest courts in the land have deemed the law unconstitutional in three cases—sorry, but that is not unconstitutional.

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