In its filing, the House states that “the Department [of Justice] now refuses” to defend the statute from the equal protection and due process challenges to DoMA’s constitutionality (pp. 9-10).  Thus, unless the House is permitted to intervene in the case, the desire of the House to have a constitutional defense of DoMA offered to the court will not be met.  The Court of Appeals will now have to rule on whether it will grant the House’s motion.

This headline is entirely wrong. Same-sex “marriage” is absolutely, unequivocally not legal under federal law. Ever. At any time.

That is because of a federal law known as the Defense of Marriage Act (usually abbreviated DOMA). Public Law 104-199 was passed by overwhelming bipartisan majorities in both houses of Congress (342-67 in the House, 85-14 in the Senate), and signed into law by President Bill Clinton on September 21, 1996.

One part of the Defense of Marriage Act provided that states could not be obligated to recognize same-sex “marriages” contracted in other states.

The other key provision of DOMA (found in Section 3 of the bill), now under challenge in several courts, defines marriage for all purposes under federal law. It states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

This statute (now codified in Title I, Chapter 1, Section 7 of the United States Code) has never been repealed. It has never been struck down by the U.S. Supreme Court. It is the law. And it is unequivocal in forbidding federal recognition of same-sex “marriage.”

What Grant actually describes is not any ambiguity about the state of the law, but rather the duplicity of the current administration under President Obama and Attorney General Eric Holder. It is no secret that Obama would like to see DOMA repealed, but Holder has stated that in the meantime, “Section 3 will continue to be enforced by the Executive Branch.”

Holder’s actions, however, have belied those words. The latest example, described in Grant’s blog post, was Holder’s decision to overturn a decision by the Board of Immigration Appeals, which had ruled against an application for resident status by an Irish man who entered into a civil union with an American in New Jersey. Holder asked the Board to consider the case again, and determine “whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a ‘spouse’ under the Immigration and Nationality Act.” This is irrational, given that “the requirements of DOMA” are not “absent,” and it is utterly hypocritical when viewed in light of Holder’s promise to continue enforcement of DOMA.

In addition to the misleading headline, there is one other part of Grant’s blog post that requires some careful fact-checking. It is this paragraph:

One reason for the controversies is that the Department of Justice is opposed to the law. The opposition, however, only applies in certain jurisdictions. Contrary to headlines, the Department of Justice will defend DOMA in some courts. In February, Attorney General Eric Holder informed the Congress that the Department of Justice is opting out of defending DOMA in the U.S. Court of Appeals for the Second Circuit. In other words, the DOJ will no longer defend the act if a gay couple appeals a decision in New York, Connecticut, or Vermont, but it will defend the act in other states.

Really? I have not hesitated to accuse the Attorney General of hypocrisy with regard to DOMA, but not with quite such a level of hypocrisy that they would argue in one court that a law is unconstitutional while simultaneously arguing in another court that it is not. Yet that is what Grant appears to be stating is the current stance of the Justice Department.

I think Mr. Grant has mis-read (or perhaps not read all of) Mr. Holder’s letter to Congress on February 23. The very opening sentence of that letter reads,

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.

This amounted to a reversal of position for the Justice Department, which had defended DOMA, in the past, in other cases. For example, a federal district court judge in Massachusetts last year declared DOMA unconstitutional in a pair of cases, which are now on appeal to the First Circuit. The Justice Department filed briefs defending DOMA in those cases as recently as January 13 of this year.

To understand why the administration reversed its position, you must understand the different standards for deciding “equal protection” cases—“rational basis” vs. “heightened scrutiny.”

When a law creates a “classification” that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the constitution’s guarantee of the “equal protection” of the law. However, most laws are judged under a “rational basis” test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, “heightened scrutiny” usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. Use of a “heightened scrutiny” standard increases the chances of a court striking down a legislative enactment.

Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases mentioned above) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on “sexual orientation” are subject only to a “rational basis” test. The DOJ’s briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the 2^nd) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that “classifications based on sexual orientation warrant heightened scrutiny.” (It could be argued that defining marriage as the union of a man and a woman actually does not classify on the basis of “sexual orientation” at all, but that would require a separate blog post.)

Holder wrote, “Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen” (the two new Second Circuit cases).

What if the Second Circuit rejects the administration’s “heightened scrutiny” argument? Holder stated,

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.

Here, Holder appears to stand by the Department’s previous arguments under the more lenient standard—but he could hardly have done otherwise without appearing utterly foolish. But to say this means the Department “will defend the act” at all, as Grant states, seems a stretch. Note, for instance, the use of the passive voice—“a reasonable argument . . . may be proffered,” not that we will proffer such an argument.

Even before making the statement above, Holder declared, “This is the rare case where the proper course is to forgo the defense of this statute.”

Still, the focus in Holder’s letter on the newer Second Circuit cases might be seen as still leaving some ambiguity about the DOJ’s defense of DOMA in other courts—until you reach the penultimate paragraph of the letter. Here, he states,

I will instruct Department attorneys to advise courts in other pending DOMA litigation [emphasis added] of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The reason for the primary focus on the Second Circuit cases in Holder’s February 23 letter to Congress was one of timing—he concludes by warning Speaker Boehner (as the likely new defender of DOMA), “A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011”—just sixteen days after the letter was sent. But “courts in other pending DOMA litigation” would be given the same statement.

The position of the administration on the defense of DOMA is now clear—the law “violates the equal protection component of the Fifth Amendment” and “the proper course is to forgo the defense of this statute.” As a result, “the Department will cease defense of Section 3.”

Tobin Grant’s claim that DOJ’s “opposition [to DOMA] only applies in certain jurisdictions” and that “the DOJ . . . will defend the act in other states” must be rated as incorrect.

Recall that Attorney General Holder announced on February 23^rd that the Department of Justice would no longer defend DoMA from legal challenges going forward.  On March 1^st Mr. Linton completed a very powerful response to the arguments laid out by Attorney General in his letter to members of Congress.  Linton’s reply – available below – really knocks the props out from under the Administration’s arguments.

Read and enjoy:

Linton_Resp to Holder-DoMA surrender_2011.03.01

Yet now, DOMA is under the sharpest attack in its history—despite the fact that four federal courts have already upheld its constitutionality, and no federal or state appellate court has ever said that it violates the U.S. Constitution. In July 2010, however, a single federal District Court Judge in Boston, Joseph L. Tauro, ruled in a pair of cases that the federal definition of marriage in DOMA is unconstitutional. In November 2010, two more federal court challenges to DOMA were filed in New York and Connecticut. In total, there are no less than ten currently pending federal court cases which involve some form of challenge to DOMA. Here are some key questions and answers about the current status of this law:

Q: What did Attorney General Eric Holder announce on February 23 about the administration’s position regarding the federal Defense of Marriage Act (DOMA)

A: In a press release and in a letter to Congress, Mr. Holder said that he and President Obama have concluded that one of the provisions of the Defense of Marriage Act—the one which limits the federal government to recognizing only marriages between one man and one woman—is unconstitutional. This marked a sharp reversal, since the Department of Justice has submitted several briefs defending the constitutionality of DOMA in previous court cases.

This decision represents a shocking abdication of the Attorney General’s, and the President’s, constitutional responsibility to “take care that the laws be faithfully executed,” and sets a dangerous precedent for future executive refusals to defend existing law.

Q: What motivated this change of position?

A: Politics likely played a major role, as the Obama Administration has been under intense pressure from pro-homosexual activists to stop defending DOMA. There is also evidence which suggests collusion between the Justice Department and attorneys who are challenging DOMA and the definition of marriage in court. Attorneys in the case of Perry v. Schwarzenegger, who seek to overturn California’s marriage amendment (Proposition 8) and establish a federal constitutional right to same-sex “marriage,” filed a Motion to Vacate Stay with the Ninth Circuit, containing detailed citations from the Attorney General’s letter, just hours after the letter was released.

Family Research Council has filed a Freedom of Information Act (FOIA) request for any communications between the DOJ and litigants and attorneys in this case or in the cases challenging DOMA in other courts.

Q: Hasn’t President Obama opposed DOMA all along?

A: Yes, Mr. Obama favors the repeal of DOMA. However, it is possible to believe that a law represents bad public policy, while at the same time believing that it does not violate the Constitution. This had been the position of the Obama administration until February 23, 2011.

Q—How can the Administration justify such an about-face?

A: Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases decided by Judge Tauro) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on “sexual orientation” are subject only to a “rational basis” test—the most lenient level of scrutiny, under which legislative choices are accorded the greatest deference. The DOJ’s briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the Second) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that “classifications based on sexual orientation warrant heightened scrutiny.”

Q: What does “heightened scrutiny” mean?

A: When a law creates a “classification” that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the Constitution’s guarantee of the “equal protection” of the law. However, most laws are judged under a “rational basis” test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, “heightened scrutiny” usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. The Supreme Court has never said that this standard applies to “sexual orientation.” It would increase the chances of a court striking down laws which limit marriage or its benefits to the union of one man and one woman, such as DOMA.

Q: How did the Attorney General justify this call for “heightened scrutiny.”

A: Mr. Holder asserted that “a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable.” However, he cited only one source in support of this contention—one dated 1992. In a footnote, he further claims that “discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed.”

In fact the theory that there is a “gay gene” or that people are “born gay” has been largely discredited by science since the early 1990’s. Studies of identical twins, such as one in the American Journal of Sociology in 2002, “support the hypothesis that less gendered socialization in early childhood and preadolescence shapes subsequent” homosexuality. And evidence that homosexuals can change has come even from Dr. Robert Spitzer, the psychiatrist who led the effort to remove homosexuality from the official list of mental disorders. In a 2003 study, Spitzer found that “changes [in sexual orientation] . . . were not limited to sexual behavior and . . . self-identity. The changes encompassed sexual attraction . . . the core aspects of sexual orientation.”

Q: Who can defend DOMA if the Justice Department refuses to?

A: The courts have long recognized Congress’s vital interest in defending the constitutionality of its Acts in the rare circumstances that the Justice Department refuses to provide such a defense. This happens as recently as 1983 in INS v. Chadha. The Supreme Court made clear in the 1997 case Raines v. Byrd that individual members cannot assert these interests, as Congress can only act through resolutions passed by the majority. Either chamber may do so individually.

Q: What would it mean if DOMA were struck down by the courts?

A: The immediate result would be federal government recognition of same-sex “marriages” that are already legal in the state where they occurred. However, if the federal definition of marriage as the union of one man and one woman is found unconstitutional, it would be only a matter of time before the same definition at the state level would be struck down—including in the 29 states that have put that definition in their own constitutions. This is exactly the remedy sought by the plaintiffs in Perry (the Proposition 8 case), which is now before the Ninth Circuit.

Q: What should be done now?

A: Congress must continue to defend DOMA in court, since the Justice Department refuses to do so. Bills to legalize same-sex “marriage” must be defeated in state legislatures, and additional state marriage amendments must be adopted defining marriage as the union of a man and a woman. These make it hard for any court to find that there is an “emerging consensus” in favor of same-sex “marriage.” Finally, pro-family groups actively involved in the defense of marriage in court, such as the Alliance Defense Fund, and others involved in filing and coordinating amicus briefs, such as Family Research Council, need financial support for these efforts.

It is quite possible that the issue of same-sex “marriage” will reach the U. S. Supreme Court in 2012 or 2013. Pro-family citizens and office-holders must “speak now, or forever hold your peace.”

This action is not unique.  As today’s Wall Street Journal notes, “The White House has apparently decided that it won’t enforce the unpopular parts of its health-care plan until after the 2012 election. The latest evidence is its decision not to slash Medicare Advantage, the program that Democrats hate because it lets seniors choose private insurance options.”

And this week’s decision regarding DOMA is not a new departure from allegiance to the law.  As George Will wrote in 2009, “The Obama administration is bold. It also is careless regarding constitutional values and is acquiring a tincture of lawlessness.”

The President of the United States takes an oath when he assumes office, assuring us that he will “defend the Constitution of the United States.”  That Constitution makes Congress the legislative body, not the Executive branch.  Thus, when Congress passes legislation that is signed into law by the President, it becomes incumbent upon the President — as the chief constitutional law enforcement office in the nation — to defend it.

When this or any President refuses to defend any given law, he is placing himself above it.  How, in principle, this distinguishes the United States from any tin-pot autocracy, where law is made by the fiat choices of an unaccountable dictator, escapes me.  For that matter, why bother with having legislative (Congress) or judicial (the Supreme and other federal courts) branches if the President can simply choose to ignore defending laws he dislikes?

Family Research Council’s Senior Fellow Chris Gacek (JD, Virginia) notes that DOMA “affirms the power of each state to make its own decision as to whether it will accept or reject same-sex marriages created in other jurisdictions … The Defense of Marriage Act preserves the right of the states to govern themselves with respect to family law and domestic relations. DOMA impedes judicial activism regarding marriage and provides needed uniformity in federal law. It is an essential part of preserving traditional marriage in America.”   In other words, as Quinn Hillyer writes in The American Spectator, “Without DOMA, state and local decision-making would be nil. In fact, the decisions of 49 states could be superseded by the decision of one state to allow such ‘marriages’.”

The rule of law is essential to the future of representative self-government in the United States.  The future of marriage hinges, in large measure, on DOMA.  President Obama has succeeded in undermining both this week.

Check out the booklet, “The Defense of Marriage Act: What It Does and Why It Is Important for Traditional Marriage.”

• “Child-porn arrests: `Shooting fish in a barrel’,” Mitch Stacy, Associated Press
• ” Texas Gay Couple’s Divorce Lawsuit Draws National Spotlight,” Nathan Black, The Christian Post
• “D.C. gay marriage bill could find tough going late,” Michael Neibauer, The Washington Examiner
• “Americans Don’t Want Government-Funded Abortions In Health Reform,” Marjorie Dannenfelser, Fox News
• “Abortion foes fail in bid for ‘Choose Life’ plate loses,” Dave McKinney, Chicago Sun-Times
• “Ban on religious signs at football games roils Georgia community,” Bob Allen, Associated Baptist Press
• “Ga. bone marrow donor meets recipient in Ill.,” Associated Press
• “Texas Judge Declares State Marriage Law, DOMA Unconstitutional,” LifeSiteNews.com
• “Useful Pew backgrounder on faith and U.S. healthcare debate,” Ed Stoddard, Reuters
• “Issues which “may frankly be too dangerous for pro-choice movements to acknowledge”,” JivinJehoshaphat