A novel issue suddenly emerged this week with Attorney General Eric Holder's surprise announcement that the Obama Administration's Department of Justice will no longer defend the Defense of Marriage Act (DOMA) against challenges in federal court.
Who will defend traditional marriage in court now that the Department of Justice has chosen to stay on the sidelines?
The short answer: Congress will almost certainly spearhead the initial effort to preserve DOMA.
"When the government takes a dive and refuses to defend the law, then I believe that there's clear precedent that members of Congress may do so," said BYU law professor Lynn Wardle, who testified before a congressional committee in favor of DOMA. "They have standing as lawmakers who enacted a law within the scope of their responsibility and authority for the Constitution, and when the executive branch declines to defend the law, they have standing to do so."
The Washington Times reported late in the week that House leadership is already strategizing with conservative groups such as the Family Research Council and the American Center for Law and Justice about the mechanics of introducing a House resolution that will essentially permit Congress to delegate the defense DOMA in four pending federal cases — two in Massachusetts, one in New York and one in Connecticut.
The discussion amongst House Republicans won't be simple.
"I know there have been discussions — I've been part of the discussions," Family Research Council president Tony Perkins told the Times. "The question is how to handle this hot potato. The president is trying to throw a monkey wrench into what's been a very unified majority."
At this point, though, possibilities far exceed certainties when it comes to the rubber-hits-road details of how and when Congress commences a defense of DOMA. For example, members of Congress could attempt to intervene in the pending court cases either individually or vis-?vis unified blocks.
"The members of Congress can individually move to intervene," Wardle explained. "But it will come with more credibility if a body does so, such as the House of Representatives.
"In this case the House is likely to (file a brief) because Republicans control the House. I doubt the Senate will do it (as a body) because Democrats control the Senate. And while many Democratic senators support DOMA, I don't think that Senate Majority Leader Harry Reid, D-Nev., is going to buck President Obama … but my guess is that several senators will (file either individually or as part of smaller groups) because they're still members of the Senate who were in Congress in 1996 and who voted for DOMA."
Perhaps the most intriguing aspect of Holder's pronouncement is what it portends for the future relationship between the legislative branch of the federal government that makes laws and the executive branch charged with enforcing those laws.
For example, it's now quite conceivable that the next time a Republican occupies the White House the GOP could choose not to mount a zealous legal defense for challenges to laws that seemed perfectly reasonable to the Obama administration.
"Think of the laws that might be undermined by the next Republican president," UCLA law professor Adam Winkler wrote in an article for the Huffington Post.
"Sen. Rand Paul has argued that the Civil Rights Act may be unconstitutional. Sen. Mike Lee has insisted that the federal laws barring child labor were not within Congress's constitutional authority to enact. … It should take more than a presidential announcement to repeal these vital and important federal laws."
Jordan Sekulow, policy director for the American Center for Law and Justice, echoed Winkler in comments made to the Washington Times.
"In the long term, (Obama) is setting a precedent for a Republican president in 2012 to say, 'I'm not going to defend Obamacare,' " Sekulow said. "So it may sound like a good idea now, but what about the future?"
Wardle, who worked as a scholar-in-residence at the Department of Justice from 1988-89, believes that the attorneys who ultimately are tapped to defend DOMA will have relatively simple and straightforward arguments to make before the pertinent courts.
"It's not a hard case," he said. "I would suggest that any attorney who has been in practice for three years could do a competent job — certainly a better job than the Department of Justice did at trial court. I mean, this just isn't rocket science. No federal court of appeals has ever made that holding (against DOMA) which now President Obama with his magic wand has decreed."
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