Bench Memos

Obama’s Constitutional Epiphany

I should start by congratulating President Obama for getting one thing right in his bombshell DOMA announcement yesterday — he implicitly acknowledged that each branch of government has a coordinate duty to interpret the Constitution. Too bad his interpretation is heavy on the politics and light on the Constitution.

Let’s start with Obama’s own shifting position. During his presidential campaign, he was against DOMA but also against same-sex marriage and for states’ right to decide how to address the issue themselves. Over the past two years, high-level DOJ nominees — including current Supreme Court justice Elena Kagan — have sworn under oath that they would defend DOMA, despite personal or administration policy against the law.  Now the president has suddenly decided that DOMA isn’t simply bad policy, it’s unconstitutional. But DOMA hasn’t changed. Neither has the Constitution. Why did the president let his nominees go out and swear to uphold something he thought was indefensible? Obama stated in December that his position on same-sex marriage was “evolving” — perhaps it has evolved in tandem with his constitutional analysis.

This is all even more perplexing in light of the administration’s position in the Obamacare litigation. In that case, just as with DOMA, they are defending a law on appeal that has been declared unconstitutional.  But following the most recent ruling in Florida, the government is trying every angle possible to keep enforcing a law against plaintiffs in a case where it has already been struck down. Regarding DOMA, the president is doing the opposite: Having abandoned the best arguments for the law at the district-court level (leading directly to a finding of unconstitutionality), the administration is now abandoning all its arguments on appeal. 

Obama’s new position will have more far-reaching effects than just sinking DOMA. His DOJ will be arguing for the first time that sexual orientation is a classification that deserves strict scrutiny — giving it the same level of protection given to racial minorities and even more than that given to victims of sex discrimination. 

The American people are learning that Obama’s Constitution is a very strange creature indeed. Whether it’s ignoring a district-court decision striking down his signature health-care legislation or abandoning a duly enacted law to establish a right to same-sex marriage through the courts, Obama’s constitutional interpretation is ultimately dictated by his political needs of the moment. 2012 can’t come fast enough.

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