THE RIGHT REACTS TO OBAMA’S MOVE ON DOMA…. The Obama White House showed some real leadership yesterday, announcing that it no longer considered the Defense of Marriage Act constitutional, and will no longer defend the law against court challenges. The right, not surprisingly, isn’t happy.
Some of the conservative responses, though, were more interesting than others. The crowd at National Review offered some fairly lazy criticism — apparently, the rascally president is doing “an end-run around democracy” — which was soon followed by Rick Santorum arguing that the president wants to “erode the very traditions that have made our country the greatest nation on earth.” The far-right Washington Times added that the administration has a strategy to “force the radical homosexual agenda on America.”
Mike Huckabee, who takes a back seat to no one when it comes to hating gays, went so far as to say DOMA may “destroy” Obama’s entire presidency. How dramatic.
Hysterics aside, there are legitimate questions associated with the Justice Department’s announcement, most notably whether the administration has a responsibility to defend congressionally-approved federal statutes — even ones a president doesn’t like — so long as they’re on the books. Orin Kerr, for example, ran a substantive criticism of yesterday’s move, raising the specter of administrations routinely refusing to defend laws they don’t like.
Adam Serwer did a nice job sketching out the legal state of play.
Kerr alludes to the Bush administration’s Office of Legal Counsel memos “legalizing” torture, but former Solicitor General Walter Dellinger explains why the analogy is mistaken. The Obama administration will cease defending the law in court; it won’t cease enforcing it. It has publicly informed Congress of its decision, rather than writing a secret memo empowering the executive branch to pretend certain laws don’t exist. […]
The Obama administration’s decision to cease defending DOMA is hardly unprecedented…. So the question really becomes whether or not the GOP takes at face value and in good faith the administration’s arguments that their decision not to defend Section 3 is a rare decision being made because of a limited and unique set of circumstances, namely the overwhelming empirical evidence that “sexual orientation is not a characteristic that generally bears on legitimate policy objectives,” and a desire to avoid setting new anti-gay precedents in courts where they have not been established.
If Republicans choose to take yesterday’s decision as license to simply stop enforcing laws they don’t like when they’re in control of the White House — and, at this point, from child labor laws to Social Security, some Republicans don’t make a distinction between laws they don’t like and laws they think are unconstitutional — then the scenario Kerr envisions could come to pass. But that depends on what Republicans decide to do, not on what the Obama administration did yesterday.
Dahlia Lithwick has more on the larger legal fight.
