As DOJ Declines To Defend DOMA, Congress Could Step In

February 23, 2011 10:30 a.m.

After walking the line on the issue of same sex marriage for most of his time in office, President Barack Obama’s administration was forced to take a stand — thanks to two court cases challenging the constitutionality of the Defense of Marriage Act filed in a judicial district without precedent on the issue.The Justice Department’s announcement Wednesday that it had concluded that part of DOMA is unconstitutional and that it would not go to court to uphold DOMA was triggered by the fact that the Second Circuit Court doesn’t have an existing precedent on the issue. After a review of the cases, DOJ concluded that Section 3 of DOMA (which defines “marriage” and “spouse” for federal purposes) was unconstitutional.

Charlie Savage of the New York Times reported back in January that the administration would be forced to take a stand on the issue. The new lawsuits were filed in districts covered by the appeals court in New York which, Savage wrote, is “one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.”

DOJ wasn’t actually required to respond to the lawsuits until March 11. But the deliberations within DOJ on whether came at a time when Obama was stating that his views on same sex marriage were evolving and Tony West, the top official in the Justice Department’s Civil Division, was telling reporters that the issue was a difficult one for the administration.

West said in November that, while the administration disagreed with DOMA, the Justice Department “has an institutional responsibility to defend the constitutionality of congressional statutes, whether we agree with them or not.”

But as the Justice Department’s decision shows, that isn’t always the case.

Back in 1996, Justice Department officials wrote a letter to Sen. Orrin Hatch explaining why they declined to defend another statute. As they explained in the letter, the Solicitor General has declined to defend laws passed by Congress in the past — including in 1946, 1963, 1979, 1980, 1983, 1988, 1990 and 1992.

In fact, when he was the nation’s solicitor general, now-Chief Justice John Roberts, declined to defend federal laws which set a preference for awarding broadcast licenses to entities with a certain level of minority ownership.

One place where the Obama administration’s decision not to defend DOMA will face harsh criticism is in the House Judiciary Committee, now headed by Rep. Lamar Smith (R-TX). Smith even offered to defend DOMA in court himself if the Obama administration didn’t step to the plate.

Smith said in a statement that the Obama administration’s decision on DOMA “is the real politicization of the Justice Department – when the personal views of the President override the government’s duty to defend the law of the land.”

Kim Smith, a spokeswoman for the House Judiciary Committee Republicans, told TPM that the office wasn’t commenting on whether Smith would defend DOMA himself.

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