It’s hard to describe how odd it is to hear a Department of Justice lawyer argue in court that a law passed by Congress should be struck down as unconstitutional. It is, after all, the DOJ’s job to defend laws passed by Congress. But as I sat at the First Circuit Court of Appeals in Boston on Wednesday listening to the appellate arguments for the Federal Defense of Marriage Act (DOMA) cases, that’s exactly what I heard for 20 minutes from the DOJ lawyer.
The administration’s abdication does have a silver lining: The House of Representatives retained former solicitor general Paul Clement to defend the law in DOJ’s place. And Clement’s well-earned reputation as advocate extraordinaire was on display Wednesday, as he deftly defended the law and Congress’s prerogative in recognizing the opposite-sex definition of marriage for federal purposes. Congress, he argued, does not have to simply acquiesce to a state’s redefinition of marriage, and it was rational for Congress to believe that marriage is too important of an institution to change in such a fundamental way.
Ultimately, it’s much better that Paul Clement is defending these cases rather than the DOJ, which only pretended to defend DOMA before deciding to jump ship and join the opposition. But still, you have to wonder how the DOJ’s unprecedented decision to attack the constitutionality of a law that it has a constitutional duty to defend will impact the Department in the long-term. Surely every administration has to defend laws that it would not have supported politically. For example, and speaking of Paul Clement, when he was solicitor general under the Bush administration he defended the infamous McCain-Feingold campaign-finance law, which is of course a darling of the Left. No doubt President Bush (and perhaps Clement himself), strongly disliked the law. But, by all accounts, Clement defended McCain-Feingold vigorously — and successfully — at the Supreme Court.
Does DOMA deserve anything less? It was enacted by huge, bipartisan majorities in both houses (85–14 in the Senate, 342–67 in the House), its constitutionality was affirmed by the DOJ, and it was signed by President Clinton. When its constitutionality was later challenged in federal court three times under the Bush administration, the DOJ defended it successfully each time. So why the change? Has the legal precedent since then made defending DOMA a hopeless cause? Hardly. In fact, it’s just the opposite.
Every circuit court that has addressed the issue — eleven to date — has rejected the idea that classifications based on sexual orientation are subject to any heightened constitutional scrutiny. Such unanimity among the circuits is rare. Nonetheless, the administration’s stated reason for abandoning DOMA’s defense is that it believes that sexual orientation should be entitled to heightened protection, despite the avalanche of precedent to the contrary. That was its main argument at the First Circuit on Wednesday (incidentally, the First Circuit is one of the eleven to have already decided the issue).
Such an odd litigation position can’t be justified by legitimate legal theory. But then again, it seems clear that the administration’s decision didn’t have anything to do with law. At the end of the day, the administration’s decision was pure politics. And that is unfortunate in a nation that is supposed to be of laws, not men. Marriage deserves better, and so do the American people.