THE DOMA MOVE HAS PLENTY OF PRECEDENT…. The Obama administration recently announced that it no longer considers the Defense of Marriage Act constitutionally sound. It will continue to enforce the law, of course, but it won’t defend DOMA against ongoing legal challenges.
The right’s message has gotten a little hysterical on this. Newt Gingrich raised the prospect of impeaching the president over the move, as did Rep. Trent Franks (R-Ariz.), who happens to be the chairman of the House Judiciary Committee’s panel on the U.S. Constitution. A prominent religious right attorney insisted on national television this week that the administration’s shift meant Americans are now “living in a monarchy.” (Don’t think about that one too much; it’s awfully stupid.)
There have been related criticisms focused on morality — DOMA remains popular among culture warriors — but before conservatives get too bent out of shape over legal concerns, it’s worth appreciating the precedent Obama and the Justice Department are following.
During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote.
In other words, when Gingrich called the DOMA shift “unprecedented,” the disgraced former House Speaker had it backwards.
If the right wants to have a debate over whether any president should take steps like these, that may very well be a discussion worth having. But to characterize Obama’s decision on DOMA as shocking, radical, and possibly even an impeachable offense is just madness.
Update: Reader R.P. emails to note that the above excerpt originally came from NPR’s Nina Totenberg.