Correction below: The New Republic is most definitely not The National Review. I was thinking of an entirely different article. My mistake.
Crossposted at Equality Loudoun.
Frank Wolf thinks that the Justice Department should still be defending Section 3 of DOMA in court:
“Congress has a reason to be concerned” over the Justice Department’s decision not to defend the Defense of Marriage Act (DOMA), Rep. Frank Wolf (R-VA) said Tuesday.
Wolf told Attorney General Eric Holder at an appropriations subcommittee hearing that the Obama administration had abandoned its duty.
“It almost looks like a political decision,” Wolf said. “I think it’s inappropriate and it’s a bad decision.”
I can understand why he’s concerned. It means that if anyone is going to argue in defense of DOMA, it will have to be Congress. That will be an uncomfortable position to be in.
First, let’s clear up any lingering misconceptions resulting from uninformed statements by people who should know better. First, the Obama administration has not stopped enforcing DOMA, nor has DOMA been ruled unconstitutional; second, the decision to no longer defend it only concerns Section 3 of DOMA (the provision that denies federal benefits to same sex couples legally married under state law), not the entire act; third, an executive branch decision to no longer defend a law is not unprecedented; and fourth, the decision does not represent a change in the president’s views (he has always opposed DOMA), only a change in circumstance with regard to the cases under court review.
That change in circumstance is this: in previous cases in which the Justice Department has defended DOMA, the level of scrutiny had already been established by precedent in those courts. In these new cases, it has not. Therefore, anyone in the position of defending the law in these cases must first establish that the lowest level of scrutiny – rational basis review, which basically means that the government doesn’t have to come up with a reason for the discrimination in question – is the appropriate one. What the Justice Department is saying is that they don’t think that can be done anymore, given the changes in the legal landscape since the passage of DOMA in 1996 – but that Congress is welcome to try to do so if that is what they want to do.
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