Attorney General Eric Holder today sent his own version of a “Dear John” letter to the Speaker of the House, informing him that President Obama’s Justice Department is abandoning its legal defense of part of the Defense of Marriage Act. Groups advocating same-sex marriage — along with the New York Times, which often acts like such a group — had stepped up calls for such a surrender, but Holder’s letter still comes as a surprise.
The letter is no mere perfunctory notice; it runs to three pages and is full of interesting turns. Holder makes clear that the determination not to continue defending Section 3 of DOMA — which sets the federal definition of marriage as the union of a man and a woman — was made by President Obama, whose grounds are that this definition is irrational and violates “the equal protection component of the Fifth Amendment,” making it unconstitutional.
Holder proceeds to explain that although Justice was able to defend DOMA in the First Circuit courts, it cannot do so in two cases now pending in Second Circuit courts. If that sounds convoluted, it probably is meant to. The bottom line is that the Obama administration is reacting to pressure and dropping any pretense of interest in preserving the 1996 law.
Advocates for DOMA and the natural definition of marriage have pointed out from the beginning how flawed Justice’s work on these cases has been. Richard Epstein, who favors same-sex marriage on policy grounds, called it “almost like collusive litigation.”
DOMA’s defenders agree that the strongest argument for its rationality rests on the central purpose of marriage: the effective uniting of a man and a woman and the children they beget into the core unit of society, the family. In his letter, Holder dismisses this concern by noting that Justice “disavowed” any claim regarding “procreational responsibility” in the lower court.
In other words, this trifling matter of fostering bonds between parents for the sake of the next generation was tossed overboard back in port. No need to swim back for it.
Holder then rakes over the coals the “moral disapproval” that was expressed in the “debates and discussions” over DOMA regarding “intimate” same-sex relationships. This is enough, the attorney general asserts, to doom DOMA as unconstitutional because, he says, it represents “stereotype-based thinking.”
A fairer statement would be that it is impossible for most observers of these issues to take a stand that does not reflect, at least in part, a moral judgment. Writers and activists on both sides of the issue routinely make morality-based arguments: about the wellbeing of children, the cost to society of family decline, varying notions of equality, and so forth. Any Justice Department lawyer or court bent on weeding out every type of moral judgment from the law will have to bring a backhoe to the task.
The Holder letter concludes: “Our attorneys will notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in these cases.” It would have been fuller and fairer for President Obama and the Justice Department to have done that from the beginning when the DOMA suits were filed in Massachusetts. The silver lining is that the way has now been cleared for a real adversarial process. The law enacted by Congress and the views of the American people finally will have a champion in court.
— Chuck Donovan is senior research fellow in the DeVos Center on Religion and Civil Society at the Heritage Foundation.