Bench Memos

The President, the Constitution, and Marriage

At Public Discourse today, my fellow Bench Memos blogger Gerry Bradley writes of “Obama’s Unreasonable Abandonment of DOMA.”  A sample:

[Attorney General] Holder’s announcement was greeted as breaking news. In one important sense, though, it was not news at all. Despite President Obama’s oft-repeated view that he “opposes” same-sex marriage, his Administration has been steadily advancing toward last week’s announcement since Obama was inaugurated. Administration lawyers have never defended DOMA in any convincing way; in fact, their fallacious arguments in “defense” of DOMA have done more to undermine its constitutionality than to buttress it. All along the Administration has unmistakably signaled that it held the conclusion that it finally forthrightly articulated last Wednesday.

The announcement is nonetheless a bit startling. The Attorney General himself admitted that the Justice Department “has a longstanding practice of defending the constitutionality of duly enacted statutes.” No one suggests otherwise about the enactment of DOMA. . . .

Meanwhile, at CatholicVote, Carson Holloway weighs in on the on-again, off-again view of liberals about presidential control of the Justice Department:

President Obama’s newly announced policy regarding the Defense of Marriage Act has come in for some well deserved criticism.  Nevertheless, it is worth pointing out that it does have a couple of beneficial, though surely unintended, side-effects.  Before going any further let me be clear on the following crucial points: the President is wrong about marriage, which really is a union of a man and a woman, and is wrong about the constitutionality of DOMA, which is beyond serious question.   But the way in which he has asserted his mistaken understanding of these matters helpfully explodes a myth about the Constitution that obscures a proper understanding of presidential power.

I have in mind here the myth of the special status of, or independence of, the Department of Justice.  Notice that the letter released by Attorney General Eric Holder last week says that the President has “instructed” the Justice Department no longer to defend the constitutionality of DOMA in federal courts.  But wait!  Earlier in the administration, when Holder announced a decision to try terror suspects in civilian courts, the question was raised: did the President sign off on this decision?  On that question Holder was rather evasive, saying only that he had informed the President of his decision.  Then came a chorus in defense of Holder, and seeking to protect the President from the political unpopularity of that decision: the President could not properly “interfere” with the decisions of the Attorney General or the operations of the Justice Department. . . .

Read the whole thing.  I’ll have my own take on Obama’s DOMA gambit up at Public Discourse soon, and will link to it here when it appears.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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