With President Obama declaring section 3 of the Defense of Marriage Act to be un-constitutional, and having his justice department announce that they will no longer defend the law, my first thought was "who does this guy think he is". If you said "President of the United States", you would be wrong. A President in our Representative Republic knows that it is the job of the courts, not the President, to determine the constitutionality of laws. And few should know that better than this one. After all, he is at the same time declaring one law un-constitutional and refusing to defend it and pushing implementation of his own Health Care Reform law that a court has declared un-constitutional. My concern is not with the defense of marriage act here, because gay marriage is a total non-issue to me. My original concern was with the precedent that is being set here. My latest concern, however, is a bit different.
Let's just take Obama at his word here, and assume for a second that he and his Justice Department find the law to be discriminatory. Would it not then be the honorable thing to do to refuse to be a part of the process of enforcing that discrimination? We have the bad habit sometimes of being outraged at lawyers who defend some of the worst scum on the planet. Isn't it nice, for a change, to see a lawyer stand up and say "sorry, but I can't defend that"? Let me give you an example.
Remember when President Obama nominated Sotomayor to the Supreme Court and had Neal Katyal step in to fill her shoes at the Solicitor Generals office? This outraged the right, because Mr. Kaytyal had defended terrorists being detained at GITMO. The White House, and many on the left, offered a very reasonable explanation for his actions. He is, after all, an attorney. Hence, it is his job to represent some bad people. I pointed out at the time that it wasn't exactly like the guy was a public defender, and had to take the cases. He chose to take them, and thus I criticized his appointment. In the end, the White House caved, and President Obama nominated Donald Verrilli to take his place.
Thus, I feel that at this point I should give honorable mention to the Obama Administration for standing up and saying "some things are just to wrong to defend". However, this leaves me with a serious and troubling question. Why is the line drawn here? Why is it that the Justice Department can be staffed by those who defended terrorists, but it can't defend U.S. law? By all means, have a conscience. But here and now?
I want to believe that President Obama is doing what he feels is in the best interest of the Country, and until now I have felt that way. But when lawyers can't find enough scruples to walk away from a case that leaves them defending those who attacked us, I find it hard to take them seriously when their conscience suddenly kicks in when a gay marriage issue shows up. This law, after all, was signed by President Clinton. Not a fan of him either, but that having been said, I find him much easier to defend than Khalid Sheikh Mohammed. Why doesn't President Obama?
If one has a problem with the Defense of Marriage Act, then let's get this thing into court and let it have its day. In the meantime, President Obama has taken an oath to defend the Constitution of the United States. This Constitution lays out a process for making, challenging, and repealing law. While he may question the constitutionality of this law, the Justice Department has a duty to defend it so long as it exists. If one feels that it is acceptable to act outside of the Constitution to diminish the law, than does that same person really have the moral authority to grandstand on the constitutionality of said law?
