David J. Brunell is a 3L at Stetson University College of Law and is president of the school's Lambda Legal Society and chair of the Student Bar Association Diversity Committee...
Recently the Department of Justice (DOJ) announced it would no longer defend in court Section 3 of the Defense of Marriage Act (DOMA), which says that for federal purposes marriage is only between one man and one woman. This would certainly seem to be great news for LGBT-rights supporters since the Obama Administration is taking a pro-LGBT stance on the issue. But I have to ask whether this action -- or more appropriately, inaction -- is constitutional.
What's the problem? Essentially, there are two issues with the DOJ not defending DOMA: first, whether it is failing to follow separation of powers mandates; and second, whether it is forsaking its duty to enforce federal law.
As Chief Justice Marshall famously wrote in Marbury v. Madison back in 1803, "it is emphatically the province of the Judicial [Branch] to say what the law is."
Not only is the DOJ failing to perform its duty to enforce federal law by not defending DOMA, by contending that DOMA is unconstitutional the DOJ is also trampling on the courts' responsibilities by attempting to speak for the courts. In short, the DOJ is acting unconstitutionally.
What's the solution? Let's rewind to a few years ago when the Obama Administration came under fire for enforcing "Don't Ask, Don't Tell," a law it inherited from the Clinton and Bush Administrations that requires that openly-LGBT people be barred from military service. At that time, the Administration asserted that because Congress had passed the law, it was Congress's job to repeal it. The Administration then constitutionally engaged with Congress in working toward repeal by proposing legislation for Congress to debate, pass and send to the President. Congress would write a new law to replace the old one and President Obama would sign it. And that's what happened. The Don't Ask, Don't Tell Repeal Act of 2010 is now law (and soon to be effective). Bottom line: the President didn't have to do anything unconstitutional in repealing "Don't Ask, Don't Tell." This is reason to celebrate.
So I wonder why the Obama Administration is taking a different approach with DOMA than with "Don't Ask, Don't Tell." The Administration, through the DOJ, is asserting that DOMA, which is now on appeal to the Second Circuit Court of Appeals, won't survive if the Court uses something that other courts haven't used when considering challenges to DOMA -- heightened scrutiny. When a court evaluates a law in this posture, which presumes that a law is unconstitutional because it is either restricting a fundamental right or burdening people based on suspect classifications (like race), most laws will fail. Therefore, if heightened scrutiny is used, which DOJ is advocating, DOMA could be ruled unconstitutional on one or both of the following grounds -- the court could find that DOMA violates fundamental rights, such as marriage, and/or discriminates against a suspect class, such as (possibly) sexually orientation a classification to which the Supreme Court has not yet applied heightened scrutiny in such cases as Lawrence v. Texas or Romer v. Evans.
One has to applaud this holding as it would mean that the federal government would end up recognizing same-sex marriages.
The real concern here is not what's being done, but rather who's doing it. There are two possible outcomes to the Administration's new approach to DOMA. The DOJ can do its job and defend DOMA. The second and better option, though, is for the Administration to work with Congress to repeal DOMA and advocate in favor of such bills as the Respect for Marriage Act, which follows the precedent set by "Don't Ask, Don't Tell" and does just that. Now, that would be cause for celebration.