Wednesday's stunning decision from U.S. Attorney General Eric Holder that the U.S. Department of Justice will no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in court may not itself be unconstitutional. But it is unprecedented and regrettable.
Holder's decision eviscerates the longstanding practice for government attorneys to defend the constitutionality of duly enacted statutes. In doing so he has shown utter contempt for Congress and the courts while politicizing the administration of justice.
The Constitution of the United States makes clear that the executive branch is to "take care that the laws be faithfully executed." By longstanding tradition that has meant that the U.S. Department of Justice has vigorously defended the constitutionality of federal statutes when challenged in court.
There are a few, but exceedingly rare exceptions to this practice. One has been where there is not a reasonable basis in law for an act's constitutionality because of intervening and indistinguishable Supreme Court rulings. The other has been where what is constitutionally at question is a direct interest or power of the executive branch.
Even when there has been a significant disagreement by an administration about the constitutionality of a statute, this tradition of fealty to the law has meant that highly professional, oath-abiding administration lawyers have provided good faith defenses for statutes that they disagree with while finding ways to signal an administration's disagreement to the court.
One of the more controversial examples of this happened when Attorney General Edward Levi and Solicitor General Robert Bork thoughtfully defended the Federal Election Campaign Act from First Amendment challenge in briefs representing the Federal Elections Commission, but then also filed in the same case a friend-of-the-court brief on behalf of the United States that argued why portions of the act fell short of what the First Amendment requires.
But at the very least, the controversial use of dual briefs in that case preserved the logic of our constitutional system of law because of the good faith government defense. And the logic of that system is that legislation enacted under the Constitution by senators, representatives and a president (all sworn to uphold the Constitution) reflects a shared judgment by co-equal branches of government about the constitutionality of that law.
That shared judgment and presumption of constitutionality should be honored and defended until a court of competent jurisdiction decides otherwise. For the executive to unilaterally decide differently dishonors the Congress as a co-equal branch of government and is tantamount to usurping the judicial review functions of the judiciary.
Vigorous defense of the statutes of the United States by its own attorneys also preserves the logic of our adversarial legal system, which looks to zealously contested briefings and proceedings as the basis for testing the truth of legal claims.
The Deseret News supports DOMA as a reasonable and constitutional way to protect states from the unintended consequences of radical changes to family law and social policy. We recognize that not everyone shares that belief. The Constitution provides opponents of DOMA clear processes to change the law. But for politically appointed officials to order government attorneys to abandon reasonable and available defenses of this duly enacted law mid-litigation is not one of them. We deplore the penchant of this administration to override tradition and process in order to enact untested social policy.
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