Perhaps the biggest news out of last week’s reaction to a federal judge striking down the Defense of Marriage Act (DOMA) was pundits’ response to the way the Obama Administration “threw the fight.” Echoing some of the most notorious boxing matches in the history of the ring, the Obama-Kagan Justice Department engaged in what even one supporter of same-sex marriage, the distinguished constitutional law scholar Richard Epstein, labeled “almost like collusive litigation,” where the adversaries in a case are secretly on the same side.
The collusion boils down to this: attorneys in the Obama Justice Department, who have sworn that they will “well and faithfully discharge the duties of the office” in which they serve, abandoned not one but all four of the bases for DOMA asserted by Congress. “Congress” in this instance was no small minority cobbled together at the last instant for legislation it scarcely debated, but a bipartisan majority that encompassed 85 percent of both houses of Congress, joined by a Democratic president who had access to comprehensive reports that amplified the many grounds for DOMA.
The Justice Department’s concessions were crucial to the outcome in the case. As Judge Joseph Tauro noted, he felt bound to address the detailed justifications Congress provided for DOMA only briefly, because, “For the purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute[.]”
In short order, then, Tauro dispensed with four primary purposes for the law: “(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.”
If anything, the explosion in out-of-wedlock child-bearing and out-of-control federal spending make these four justifications collectively stronger than they were in 1996 when Congress enacted DOMA with overwhelming margins.
Congress has an affirmative duty to put an end to the near-collusive litigation now on display in Judge Tauro’s courtroom. The rulings’ egregious character calls out for prompt appeal to the First Circuit Court of Appeals. But an appeal might bring only more of the same from an Administration led by a President who routinely offers his opinion that DOMA should be repealed but puts forth no effort to accomplish that result either.
Members of Congress can:
- Press Supreme Court nominee Elena Kagan to amplify on her written answers to Senate Judiciary Committee questions regarding her participation in the DOMA case and provide a full explanation of the Justice Department’s abdication of responsibility to defend the law adequately;
- Call on President Obama to acknowledge that his Administration has neither incentive to pursue nor interest in a well-argued appeal of Judge Tauro’s ruling and agree either to name special counsel to handle the appeal or encourage the participation of a wide range of amici, including present and former members of Congress who framed and championed DOMA;
- Issue statements and make floor remarks and special order speeches setting forth the problems with this latest example of malfeasance by the Obama Justice Department;
- Hold hearings on this extraordinary instance of failure by the executive branch of government to “well and faithfully discharge the duties” with which it has been entrusted by law.
Actions in the federal courts are sharply increasing the threat that judicial activists will continue their “one-sentence rebuttals of centuries of tradition” and overturn the institution of marriage. Marriage is the bond that binds men, women and children in unions that build civil society and endure through generations.
Changing the legal definition of this pre-political, core institution of civil society is a momentous decision that deserves the best arguments that all sides can bring to bear. The Obama Administration has done its best Jake LaMotta in the judicial ring of conflict It’s time for Congress to step up and play Cinderella Man.