It’s hard to beat the federal Defense of Marriage Act for an Orwellian-named law. The Attack on Marriage Act would be more like it.
To a widow in New York, the statute means the Internal Revenue Service considers her a pal, not the lawfully wedded wife of her now-deceased partner of 44 years. New York recognizes their Canadian marriage license, but federal law doesn’t. So the widow owes the U.S. government $350,000 in estate taxes, though she’d owe nothing if she had been a man.
Likewise, a retired employee of the U.S. Naval Intelligence Office was barred from enrolling her wife in the federal government’s health plan, she says in a lawsuit. The two had been legally married in Connecticut, but the Defense of Marriage Act considers the nuptials invalid.
That law says only marriages between one man and one woman are considered legal by the U.S. government, no matter what state law says. Five states and the District of Columbia now allow same sex marriages, but the federal government refuses to recognize them.
Unfair and demeaning to millions of taxpayers, the U.S. statute has been declared unconstitutional by a federal judge in Massachusetts.
It’s possible to abhor that law and still question the wisdom of Attorney General Eric Holder’s announcement this week that his department will no longer defend it in court, an astonishing development. For the past two years, the administration has defended it.
The Constitution says the president must “take care that the laws be faithfully executed.” Under popular interpretation of that clause, that means the president should defend federal statutes in court. Justice Department policy says government lawyers will do that when there are reasonable arguments to back them up.
Republicans seem to think that means government lawyers must always argue in favor of whatever Congress passes.
“The Justice Department has a responsibility to defend the laws passed by Congress regardless of the personal political views of the president or the attorney general,” House Judiciary Committee Chairman Lamar Smith said in a statement. The Texas Republican called it a “politicization” of the Justice Department “when the personal views of the president override the government’s duty to defend the law of the land.” And yet there are times, however rare, when previous administrations (including George H.W. Bush and Bill Clinton) have decided they couldn’t defend a law that Congress passed, with or without reasonable arguments.
Court rulings on gay rights issues over the past two years gives presidents more ground on which to claim the law’s unconstitutional. And these two new cases sparked another review of the law, Holder said.
Key to the whole discussion is a technical legal question. Before deciding whether there’s a reasonable argument they can use to support a law, government lawyers have to know how high the standard should be. To defend a law that discriminates against a protected class of people, the Justice Department must show a compelling government interest that trumps what would otherwise be unconstitutional treatment of a group of people.
But if those constitutional protections don’t apply to this particular group of people — and there are tests for deciding that — it’s enough to show that the law has a rational basis. It doesn’t have to be based on compelling government interests.
It just can’t be arbitrary.
In Defense of Marriage cases, no court has required the tougher, compelling interest test to judge the law’s constitutionality, and the Obama administration has defended it using the lower threshold.
What Holder and Obama have now decided is that the tougher scrutiny should apply, given the history of discrimination against gays, the building consensus that sexual orientation can’t be changed and that it doesn’t make gays different in any way that matters. And there simply is no interest compelling enough to overcome the discriminatory aspects of the law, Holder said.
Leaving defending the law up to Congress is an extreme act by Holder and Obama, especially after they’ve been defending it for two years.
But then, this is an extreme law.
