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Bench Memos

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Does This Mean DOMA Is Doomed?



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Ed Whelan is right as usual in his post about the Obama administration’s decision to stop defending (sic) the Defense of Marriage Act in court, especially when he writes that this decision ends what was only a charade to begin with. The Obama Justice Department was already torpedoing DOMA by making fallacious arguments in its behalf. DOMA is better off without this kind of help.

That Attorney General Holder claims the administration will nonetheless “enforce” this supposedly indefensible law is really quite a puzzle. Ed Whelan sees politics in all this, as well he should. But even politicians would blanch at maintaining what Holder is poised to attempt. The attorney general has sworn an oath to protect and uphold the Constitution. He now says that he believes DOMA to be incompatible with the Constitution. So, class, here is the pop quiz: How does the attorney general of the United States uphold the Constitution by enforcing an unconstitutional law?

Use additional sheets if necessary.

But it is even worse than Ed Whelan thinks, because this administration has done nothing less than redefine marriage. The argument against same-sex marriage boils down to this: Marriage is the sort of relationship that necessarily requires spouses of different genders. Proponents of same-sex marriage say that marriage has nothing necessarily to do with the gender of the spouses, so it is arbitrary (and thus unconstitutional) for public authorities to limit marriage to male-female couples. The constitutional question depends wholly upon this question about marriage itself, about the reality — or, if you will, the truth — of what marriage is.

Today’s announcement confirms that the Obama administration believes what SSM advocates believe about marriage — not what the vast majority of Americans believe, and not what is reflected in every federal law on the subject.

Here is another pop quiz: When will Congress enact the legislation necessary to interpose its own legal defense of DOMA in constitutional litigation?



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