The legal defense of federal statutes

Defending a law and enforcing it are not the same thing. In 1996, DOMA was passed by very large margins in both the House of Representatives and the Senate and received the ready signature of a Democratic president. Nothing in the formation of the statute can be used to impugn its constitutionality. There is, however, an argument that the act denies Americans their rights to equal protections (see the 14th Amendment). At least six lawsuits have been initiated in American courts challenging the law as inconsistent with our Constitution.

Under Article II Section 3 of the Constitution, the president must enforce the laws; if the president could pick and choose which laws to enforce, this clause would effectively confer on the executive an absolute veto over legislation. At worst, the laws might be enforced in an arbitrary and capricious manner. If I were a member of Congress, I would propose the repeal of DOMA tomorrow morning, but I am glad that the president has not stopped enforcing a valid law.

Defending the law is another matter entirely — no statute or constitutional clause requires the Department of Justice to defend laws when the laws’ constitutionality is itself challenged in court. The department does, however, do so by default — and to borrow from a now-infamous slogan, Obama was for DOMA before he was against it. More precisely, though Obama promised to work to repeal DOMA while campaigning for the presidency, his Justice Department defended the law when its constitutionality was challenged. The original lawsuits were filed in the 1st Circuit Courts, where legal precedent had already established that legislation touching on sexual orientation is held to the “rational basis” standard. The rational basis standard is the lowest possible hurdle for legislation: So long as the government can come up with some plausible rationale for its behavior, the courts will let it get away with all manner of fishiness.

By contrast, the most recent lawsuits were filed in the 2nd Circuit Court, where precedent about scrutiny had not yet been established. Usually, laws which impact a “suspect class” — i.e., a group of people who, history would suggest, are often subject to unjust discrimination — are held to the standards of intermediate or strict scrutiny, rather than the rational basis standard. Under these harsher lights, laws must be narrowly tailored to advance a compelling state interest. Courts are naturally suspicious of laws subject to the higher scrutiny standards.

Left by the 2nd Circuit Court to its own devices, the department concluded that classifications based on sexual orientation should be subject to “a more heightened standard of scrutiny” (terminology that seems intentionally vague) and determined that the law could not pass constitutional muster. So it decided to stop defending the law in court altogether, everywhere. I’m still not clear on how the lack of precedent in the 2nd Circuit Court has any bearing in the First, but on the whole, I approve of the administration’s reasoning.

There is, of course, a slight incongruity in the president’s enforcing on the streets a law whose justice he cannot honestly uphold in court. And these odd twists do impact real people; just look to the recent ‘Prince’ article about Joshua Vandiver, sixth-year grad student in the politics department, and his legally married husband, Henry Velandia. Under DOMA, Americans who hold valid state marriage licenses to foreign nationals of their own gender cannot confer citizenship on their spouses through marriage. So though Vandiver and Velandia hold a Connecticut marriage license, Vandiver — an American citizen — cannot sponsor Velandia — a Venezuelan — for a green card.

DOMA is dying, but it is not dead yet. The law can only be repealed by Congress or struck down by courts. As someone who takes a peculiar delight in the minutiae of constitutional procedure, my initial reaction to the Department of Justice’s decision was this: If the administration won’t defend the law, then who has standing to do so?

The short answer is that either chamber of Congress may come to the law’s defense. Attorney General Eric Holder wrote in his announcement that he had “informed members of Congress of this decision [as he was required to do under 28 U.S.C. § 530D], so members who wish to defend the statute may pursue that option.” Each branch of Congress has its own legal counsel, whom it could direct to defend the law. I assume that the Democratic-controlled Senate will not choose to defend DOMA. I consider it at least probable that the Republican-controlled House will direct its general counsel to defend the law.

Confusion could easily be expected over so subtle a distinction as that between defending and enforcing a law. Given the particulars of this case, I am glad to see that the difference has not been lost on the Obama administration.

Brendan Carroll is a philosophy major from New York, N.Y. He can be reached at btcarol@princeton.edu.