First the Obama Justice Department defended the Defense of Marriage Act (“DOMA,” which defines marriage as between a man and a woman for the purposes of federal law, and clarifies that no state has to recognize a homosexual marriage from another state) in federal lawsuits. Well actually, it did such a bad job of defending the lawsuits that even supporters of gay marriage acknowledged that the Justice Department’s non-defense of DOMA bordered on collusive litigation, concluding that the “DOJ’s faint-hearted advocacy is no way to run a legal system.” It could constitute unprofessional behavior by the Justice lawyers and on the edge of ethically improper since lawyers are charged with robustly representing their clients. They are not supposed to try to throw a case to the other side like the Chicago Black Sox did in the 1919 World Series.
Next, Attorney General Eric Holder announced in February that the Justice Department would no longer defend DOMA in court, but that the President had directed executive agencies to continue enforcing DOMA unless it is repealed by Congress or the judicial branch renders a “definitive verdict” against the law’s constitutionality.
Now the Justice Department has gone even further, filing a strongly-worded brief in federal court in San Francisco in Golinski v. United States Office of Personnel Management (OPM) arguing that DOMA was motivated by hostility toward gays and lesbians and is unconstitutional.
The decision not to defend the statute was already a break with DOJ policy. As I wrote previously, it is the well-established policy of the Justice Department to defend a federal statute unless no reasonable argument may be made in its defense, or unless the statute would infringe on some core presidential constitutional authority (that is, the President doesn’t need to vigorously defend a federal statute that he believes infringes on his Article II power). Applying this policy, the Executive Branch has traditionally defended federal statutes vigorously, even in cases where it had strong constitutional doubts, and where it had strong policy reservations.
But now we have a Justice Department so politicized that it is actually arguing against federal statutes in court, and doing so not based upon the dictates of the law—for example, the Supreme Court has never applied the heightened scrutiny that the government argues is required—but based on the apparent policy preferences and political ideology of this administration. So much for taking care that the laws be faithfully executed.
Contrary to DOJ’s position, there are strong arguments to be made in favor of traditional marriage. If you don’t believe me, then maybe you will believe candidate Obama, who ran on a platform opposing same-sex marriage (although also opposing DOMA). If opposition to gay marriage is simply the result of hostility towards gays and lesbians, then what are we to make of Mr. Obama’s position during his presidential campaign? And the Justice Department is thus claiming that the 85 senators and 342 members of the House who voted to pass DOMA were all bigots.
The brief filed by the Justice Department also raises one of the strangest and most contrary procedural issues I have ever seen. The plaintiff is a federal government employee in California who sued after she could not get her “wife” enrolled in the federal employee health care plan that American taxpayers pay for. The Justice Department’s Civil Division filed an initial motion to dismiss the plaintiff’s lawsuit.
Paul Clement, who was hired by the House of Representatives to represent the federal government after Eric Holder announced that DOJ would no longer defend DOMA, entered this lawsuit to defend OPM and the federal government. Acting on the federal government’s behalf, he filed a second motion to dismiss the lawsuit in June because binding Supreme Court and Ninth Circuit precedent support DOMA’s constitutionality and the federal statute easily satisfies the applicable rational basis review. As a result of the filing by DOJ of its ill-considered and misleading brief, the government is now technically opposing its own motions to dismiss the case!?!
The Justice Department should not be sandbagging duly enacted federal laws in court because it disagrees with the policy. As Mr. Obama’s own prior position indicates, there were legitimate bases for the government to favor traditional marriage. The administration has gone from saying it would leave the defense of DOMA up to Congress to now trying to actively thwart and sabotage that very defense of DOMA being asserted by Congress on behalf of the federal government and American taxpayers. It is this kind of legally bizarre behavior that has led many to conclude that this is the most politicized Justice Department in living memory, which given DOJ’s enormous power, is a very dangerous threat to our concept of ordered liberty and adherence to the rule of law.