DOMA, the GOP, and the Constitution...

In the heat of the Republican primaries, it’s no surprise that DOMA, the Defense of Marriage Act, is once again coming to the fore. Marriage, it seems, is such a weak and vapid institution that only a Constitutional amendment defining marriage as between one man and one woman will save it, according to both front runners in Florida, former House Speaker Newt Gingrich and former defender-of-gay-rights-while-Massachusetts-Governor-but-not-now Mitt Romney, who increasingly sounds like a line from a Whitman poem[1]…

Ron Paul, defending federalism over liberty on this issue, says that decisions on legalizing or prohibiting gay marriage should be left to states. This is not acceptable to that great conservative Rick Santorum who, like Gingrich and Romney, are eager to amend the Constitution of the United States before the demographics change and gay marriage becomes a done deal. In response to Paul, Santorum, in defiance of reality, says, "We can't have 50 marriage laws." 

Earth to Santorum: We DO have 50 different marriage laws, differing in such matters as what constitutes a common law marriage; the age of consent to marry, with and without parental consent; whether or not premarital medical exams are required, and if so the scope of the exam and the maximum allowable period between the exam and the subsequent marriage; the length, if any, of the waiting period between obtaining a marriage license and the marriage ceremony; the duration of validity of the marriage license before expiration; how marital assets are handled, among many, many other differences. Though no doubt shocking to Santorum--how did this guy pass the bar?--both the Republic and the institution of marriage have so far survived all these variations in marriage laws. (For God’s sake, DON’T anyone tell him marriage laws differ internationally. This is one man who doesn’t need another reason to start bombing other countries…)

From a libertarian perspective, all of these candidates are wrong, though admittedly Paul comes closest to being correct. The larger mistake regarding DOMA, however, belongs to Speaker of the House Boehner. Almost a year ago now (2/23/11), the Speaker became upset that the President, through his Attorney General and Department of Justice, announced their unwillingness to defend the legality/constitutionality of the Defense of Marriage Act passed by Congress in 1996. 

Some background here: For many years, through many administrations of both R and D stripe, the Justice Department has always proceeded on the assumption that, until the Supreme Court says otherwise, anything passed by Congress is constitutional and thus worthy of Department of Justice defense in court. This “Presumption of Constitutionality” was challenged last year by the Obama administration, refusing to defend DOMA in court against numerous judicial challenges.

On the practical side, this was a not unreasonable choice by Attorney General Holder, as DOMA has not done well in court. It is read by the court, not unreasonably, as prima facie designed to achieve an unwarranted disparate impact on the citizenry, and therefore suspect.

Also on the practical side, Boehner then and the Republican Presidential hopefuls now are foolish going to the wall to defend DOMA. Not only will they likely lose, but in the process they will turn off many independents who switched sides between 2008 and 2010 to give them the House, and may, if sufficiently turned off by Republican church dogma, switch back again in 2012.

But more importantly, this was one of those rare situations where the Obama administration is in the right. And this executive interpretation will be a helpful precedent the next time someone favoring limited government sits in the Oval Office (granted, a description no candidate save Paul falls under in this race).

Both Congress and the President swear to uphold the Constitution. The question then arises, how can one seriously attempt to uphold the Constitution if one refuses to hazard a guess as to what it means? Does Boehner seriously believe that “upholding the Constitution” is identical to “upholding whatever rulings the Supreme Court hands down?” If he doesn’t believe this—and his position on Roe v Wade certainly implies he doesn’t—then he must believe the Supreme Court is not the only source of constitutional interpretation. So what we have here is a difference of opinion between some members of Congress and the President on the constitutionality of DOMA. 

This is not a rare occurrence. The current Congress and the President also disagree on the constitutionality of the Obamacare legislation. The Supreme Court will rule at the end of the current session. If Obama and Biden suddenly died, and Boehner, as Speaker, assumed the Presidency, would he really feel compelled as President to say, “Well, I don’t believe in the constitutionality of Obamacare but of course I will defend Obamacare to the best of my ability in front of the Supreme Court.” Doing that would imply that an oath to defend the Constitution includes defending things one truly and strongly believes to be unconstitutional.

To think otherwise is to misunderstand the Founders’ concept of the division of powers. Giving the Supreme Court supreme judicial power doesn’t mean no other branch of government has a role in determining constitutionality. If Congress doesn’t think a bill is constitutional, it doesn’t pass it into law, so it never reaches the Supreme Court. If Congress thinks a former Congress passed an unconstitutional law, it repeals it. It doesn’t claim that the presumption of constitutionality requires waiting for the Supreme Court to rule. Similarly, if a bill reaches the President’s desk that he believes is unconstitutional, he doesn’t sign it into law. He doesn’t say, “Well, Congress thinks this is Constitutional; who am I to judge such things?” Conservatives rightly castigated President Bush II when he signed the McCain-Feingold bill into law even while explicitly saying he thought parts of it were unconstitutional. 

Just as signing bills into law, or refusing to do so, is part of the President’s executive powers, so is the way he chooses to run the Justice Department. Every government department, even today, has a finite budget. Decisions regarding priorities have to be made. If the President thinks the scarce resources of the Justice Department’s budget are not well spent by defending DOMA, why should Congress object? Surely using resources to defend a law one believes unconstitutional is a low priority use of funds. If the Justice Department indicated it didn’t feel it worthwhile to defend certain OSHA or environmental regulations, Republicans would rejoice. 

Former generations understood this. Laws do not enforce themselves. When the Supreme Court ruled on the rights of native Americans in a way that Andrew Jackson opposed, he said, “The Supreme Court has ruled. Now let them enforce their ruling.” Jackson is now considered retrograde for his position on the Indians, but his position on the law not enforcing itself withstands the test of time. Does anyone seriously believe that if the Supreme Court in the 1960s had determined the war in Vietnam was unconstitutional the troops would have been immediately withdrawn?

Everyone agrees the President has the power of the pardon. A blanket pardon for anyone incarcerated for violating certain laws—be it anti-war protestors during the Vietnam era or those politically prosecuted under the infamous Palmer laws of WWI; be it drunks thrown in prison during Prohibition or abolitionists violating Fugitive Slave laws—is well within the President’s authority. Would Boehner say this, too, is a violation of the will of Congress, a violation of the Presumption of Constitutionality toward anything Congress spews out?

Won’t this lead to anarchy? Not at all. It will lead to a divided, and thus limited, government. How are our freedoms maintained and protected? By restricting the rules that bind our actions. Therefore, it is right that a rule, to have societal impact, must be so correct, and so clearly agreed to, that not only can it get passed into law by Congress but it can also get enforced by the President and approved by the Supreme Court. DOMA got passed by Congress but federal courts routinely oppose it and it will likely not survive a Supreme Court ruling. Nor can it get enforced by the current administration. This is how the Founders conceived of things. 

No one should be surprised to find that in the months leading up to the repeal of Prohibition, the Justice Department did not work quite as hard as it had previously to enforce Prohibition, just as soldiers don’t risk all in the final hours before a peace treaty is signed. No one wants to be the last person to die in a war.

Boehner and the Republicans should be happy with this result. First it is the essence of limited government. Second, it allows a President more devoted than Obama to limited government to carefully pick and choose which laws he is willing to defend in front of the Supreme Court. 

But when it comes to the shameful stands the GOP Presidential candidates take on marriage equality, the best their supporters can say is, “don’t ask, don’t tell…”

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[1]: Song of Myself: “Do I contradict myself? Very well then I contradict myself, (I am large, I contain multitudes.)”