Obama reignites battle over gay marriage

Published: Sunday, Oct. 4 2015 3:04 p.m. MDT

The Obama administration's announcement Wednesday that it would no longer oppose legal challenges to the Defense of Marriage Act has left conservative senators, congressmen and traditional marriage advocates reeling — but some see a silver lining.

The move, which comes just two months after the repeal of the military's ban on openly gay service members, was seen as a monumental shift in the battle over gay rights. Sen. Orrin Hatch, R-Utah, called it "deeply disturbing" and Sen. Mike Lee, R-Utah, said the decision was "indefensible." Leading gay rights advocate Jon W. Davidson, legal director for Lamdba Legal, told the Los Angeles Times Wednesday that the new stance was a "turning point in the quest for equality."

"With all of the problems facing our country right now, I'm surprised that he woke up this morning and decided that he wanted to pick this battle," Rep. Jason Chaffetz, R-Utah, said of Obama. "This is a fight worth fighting and I'm willing to fight it everyday with him if he wants."

Congressman Jim Matheson, D-Utah, also said that he strongly disagreed with the administration's decision.

It is unclear what the long term implications of the new policy will be. In a letter to congress Wednesday, Atty. Gen. Eric Holder said the administration had concluded that the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, was unconstitutional because it discriminated against gays. A final ruling on the constitutionality of the law will most likely be made by the Supreme Court. In the meantime, Holder said the administration would continue to enforce the law.

Signed by President Bill Clinton in 1996, DOMA protects states' rights to define marriage and to decide whether to recognize same-sex unions from other states. It also clarifies that for purposes of the federal government — such as Social Security payments and tax allowances — marriage is defined as between a man and a woman.

Currently, there are a number of lawsuits before the federal government challenging the constitutionality of DOMA. While the Justice Department will continue to enforce the law, they will no longer defend it in federal lawsuits — which opens the door for congress to either repeal the law or for the Supreme Court to make a final ruling on its constitutionality.

The effects on Utah would not be immediate, but that could change quickly if the current lawsuits are successful and the adminstration's view prevails. "If the President and Attorney General are correct that the Defense of Marriage Act is unconstitutional under the 5th Amendment, then every state's marriage law is also unconstitutional," said William C. Duncan, director of the Utah-based Marriage Law Foundation. "And that means Utah's marriage amendment and every state's marriage amendment is unconstitutional."

The Department of Justice has defended DOMA in court in the past two years under Obama, but only in jurisdictions where courts had already decided that there is a "rational basis" for laws similar to DOMA. However, Holder recommended to Obama that the administration not defend the law in two lawsuits before the Second Circuit, which is in New York and has no binding standard for laws that consider sexual orientation.

Sen. Hatch said it is the job of federal courts, not the administration, to decide the constitutionality of laws passed by Congress.

"President Obama's personal politics are trumping his presidential duty," Hatch said in a statement. "Congress overwhelmingly passed the Defense of Marriage Act, a Democratic president signed it into law, and the Justice Department has a duty to defend it. It is deeply disturbing to see politics further distort the Department of Justice."

Sen. Lee agreed. "This is a law that has been on the books for 15 years. There was overwhelming bipartisan support for this law. It is extraordinary and unusual for the Justice Department simply to say 'We are not going to defend this law.'... To take the step that this administration took today, which is to say that there is no reasonable basis upon which one could contend that it is constitutional is as unusual and extraordinary as it is indefensible."

Lynn D. Wardle, the Bruce C. Hafen Professor of Law at BYU said the administration is bound to defend the law, even laws they don't agree with. "This is almost unprecedented," Wardle said. "Tell me a time where George W. Bush, Bill Clinton, George H.W. Bush, Richard Nixon for that matter, Jimmy Carter or Ronald Reagan would have done something like this."

One of America's leading conservative thinkers, on the other hand, thinks the Obama reversal announced Wednesday could be a good thing for proponents of traditional marriage.

"I think this decision is good news for the defenders of DOMA," said Robert P. George, McCormick Professor of Jurisprudence and director of the James Madison Program at Princeton University. "The Obama administration, so far, in its defending of DOMA in the lower courts has not so much been defending it as they have been sabotaging it. Their so-called defenses of the act have been so incompetent as to at least suggest that they were deliberately throwing the case. By withdrawing from the case altogether, this will give the House of Representatives the opportunity to secure counsel of its own to defend the legislation and who will defend it robustly and, I think, ultimately successfully in the Supreme Court of the United States."

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