February 23, 2011 | Commentary on Family and Marriage
Attorney General Eric Holder today sent his own version of a “Dear John” to the Speaker of the House, informing him that President Obama’s Justice Department is abandoning legal defense of part of the Defense of Marriage Act (DOMA). Holder’s letter comes as a bit of a political surprise, even though groups advocating same-sex marriage – along with The New York Times, which often acts like an interest group – have stepped up calls for this.
The Holder letter to House Speaker John Boehner 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. The grounds: that this definition is irrational and violates “the equal protection component of the Fifth Amendment.”
Holder’s letter proceeds to explain how, though 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 here is that the Obama administration is reacting to pressure and dropping its mask 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, branded it “almost like collusive litigation.”
DOMA’s defenders agree that the strongest argument for its rationality rests in 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 the bonding of parents for the raising 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 well-being 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 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.
Now we are at this embarrassing pass for the Obama administration, which, like the Scarecrow in “The Wizard of Oz,” had been going both ways on DOMA. The silver lining is that the way has 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 a senior fellow at The Heritage Foundation.
First appeared in National Review Online