Bench Memos

Obama Violates Commitment to Have Executive Branch Enforce DOMA

When Attorney General Eric Holder announced in February 2011 that the Obama administration would no longer defend against challenges to the Defense of Marriage Act in court, he maintained that President Obama would ensure that the executive branch otherwise continued to enforce DOMA. As Holder stated in his letter to House speaker John Boehner:

Notwithstanding this determination [not to defend DOMA in court], the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive 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.]

So much for that commitment. As the Washington Post reported earlier this week, in the wake of last month’s federal district-court ruling that DOMA could not constitutionally be applied to bar a lesbian employee of the Ninth Circuit from receiving federal health-insurance coverage for her same-sex spouse, the Obama administration, in direct violation of DOMA, has directed that the employee’s same-sex spouse be covered under her federal health-insurance plan.

The “judicial branch” has not rendered a “definitive verdict” against DOMA. Within the clear meaning of Holder’s letter, such a “definitive verdict” by the “judicial branch” would come only in the event that the Supreme Court itself were to strike down DOMA (or if the Court were clearly to acquiesce in a pattern of appellate-court rulings striking down DOMA—there have been none to date). Here, by contrast, the ruling that the Obama administration is using as its basis for violating DOMA is a mere district-court ruling, a ruling that, moreover, is on appeal to the Ninth Circuit. (True, that district-court ruling has not been stayed pending appeal, but that’s largely or entirely because Holder’s Department of Justice declined to seek a stay.)

As I documented in my House testimony last year, the Obama administration first sabotaged its own defense of DOMA and then, in a sharp departure from the Department of Justice’s longstanding practice, abandoned its (pretended) defense of DOMA. Obama’s violation of his commitment that the executive branch would continue to enforce DOMA is but the latest step in his administration’s stealth campaign to advance the cause of same-sex marriage.

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