More DOMA Sabotage by Eric Holder

by Ed Whelan

When Attorney General Eric Holder announced the Obama administration’s decision to stop pretending to defend the Defense of Marriage Act against challenges in court, he maintained that the executive branch would continue to enforce DOMA. A mere two months after making that commitment, Holder brazenly violated it. And he’s now trying to cover up that fact.

Let’s run through the specifics:

1. In his February 23 letter to Congress setting forth the Obama administration’s decision to stop defending DOMA, Holder made clear that the executive branch would nevertheless continue to enforce DOMA:

Notwithstanding [the] determination [not to defend Section 3 of DOMA in two newly filed cases], the President has informed me that Section 3 [the provision defining “marriage” and “spouse” for purposes of federal law] will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive Branch agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised. [Emphasis added.]

2. On April 26 (in an action that evidently became public only late last week), Holder vacated a decision of the Board of Immigrations Appeals that ordered the deportation of an Irish citizen, Paul Wilson Dorman, who has been living illegally in the United States. (BIA is an entity within the Department of Justice that answers to the Attorney General.) According to news accounts, Dorman entered a same-sex civil union in New Jersey in 2009. Notably, Holder’s order vacating the BIA decision remands the matter to the BIA

to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including … 1) whether [Dorman’s] same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, [Dorman’s] same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act.… [Emphasis added.]

3. As this article from today’s New York Times reports, Holder’s spokeswoman at DOJ is nonetheless contending that DOJ “will continue to enforce DOMA” and that Holder issued his order in the Dorman case (in the article’s paraphrase) “only because he wanted the immigration appeals court to decide issues he felt had been overlooked.”

4. But if Holder were abiding by his commitment that the executive branch would continue to enforce DOMA, the issues that he has asked BIA to address—and that he says bear on “the constitutionality of DOMA”—would be entirely irrelevant, and he would have no basis for vacating BIA’s order of deportation. What Holder is instead doing is another step in his two-year-long practice (outlined in Part IV of my recent House testimony) of dishonest and irresponsible stealth measures to undermine DOMA.