DOMA's Fifth Column

In February, President Obama directed the Department of Justice to stop defending Section 3 of the Defense of Marriage Act (DOMA).  Immediately, many conservatives decried the announcement.  Curt Levy of the Committee for Justice described Obama’s decision as “outrageous” and a “power grab that . . . would allow him to undermine any duly enacted federal law that he doesn’t personally agree with.”  Similarly, the Washington Times averred that “the public has the right for their laws to be defended by the executive branch.”  For our country to endure, “government can’t be allowed to ignore the law.”

The President’s decision to cease defending a statute under litigation is not unprecedented.  In fact, the Framers expected such efforts by the Executive Branch.  While one can disagree with Obama’s legal reasoning (that DOMA’s Section 3 is unconstitutional), the executive’s refusal to defend an enactment that he believes to be contrary to fundamental law finds support in U.S. constitutional history.

DOMA was passed by Congress and signed by President Clinton in 1996.  The House vote was 342-67.  In the Senate, only 14 cast votes against DOMA.  The act contains two operative sections.  Section 2 provides that no state shall be required to recognize a homosexual “marriage” entered into under the...

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