In a surprise to everyone involved in lawsuits regarding gay marriage,
on February 23 the United States Attorney General notified Congress
that the Department of Justice, at the instruction of the President, would
abandon its defense of a section of the Defense of Marriage Act (DOMA) that is now under
attack in several lawsuits in US federal courts. The section that is being
challenged defines the term, “marriage,” as “a legal union
between one man and one woman” for all purposes of federal law, including
such things as federal personnel benefits, Social Security awards, and tax
laws. The result is that a person who is considered legally married to a
same-sex spouse in a state like Massachusetts is not considered married for the
purposes of federal law.

Although this section of DOMA is not being defended, federal agencies
were told to enforce it until it is repealed or “the judicial branch
renders a definitive verdict against the law’s constitutionality.”

How can the President of the United States legitimately direct the
Attorney General not to defend the constitutionality of a statute that has been
enacted by Congress? What will be the effects on the pending lawsuits that
attack the statute as an infringement on equal rights?

The answer to the first question is not as simple one might think. It is
true that the US Constitution requires an oath from the President that he will
“to the best of my Ability, preserve, protect and defend the Constitution
of the United States.” (Article II, end of Section 1.) Take note that it
is the Constitution that the President is sworn to “preserve, protect and
defend,” not every statute that Congress may enact.

Later, the Constitution requires the President to “take Care that
the Laws be faithfully executed.” (Article II, Section 3.) It would seem
that faithful execution of the laws would require the President to defend
duly-enacted statutes in court. But one must remember that under the American
system, the Constitution serves as the ultimate law, and a statute that
conflicts with the Constitution is invalid. The faithful execution of the laws,
therefore, sometimes requires a President to ignore a statute in order to
uphold the Constitution when the two are in conflict.

While it is rare for a President to do this, in modern times Presidents
of both parties have done so. A memorandum
prepared for the Counsel to the President
in 1994 during the Clinton
Administration is available that lists some examples. (Its author, now in
private practice in Washington, defended President Obama’s action in Sunday’s New York
.) One may also examine the 1946 opinion of the Court in United States v. Lovett, which recounts how
President Franklin D. Roosevelt refused to defend one portion of a law
affecting federal employment, and that in INS v. Chadha (1982), indicating that the INS, a
part of the Justice Department, refused to defend an immigration statute during
the Carter and Reagan Administrations. In the presidency of George W. Bush, the
Solicitor General informed the United States Senate by letter that
the Department would not pursue an appeal of an adverse decision concerning a
law forbidding the advertisement of marijuana on federally-funded mass transit.

But in most cases, the question of constitutionality is unclear, and
there should be an able advocate to present the arguments in favor of
constitutionality to the courts. It is troubling that President Obama has
forbidden his Justice Department to do so when the appellate courts have not
yet ruled. It is especially troubling that the President’s conclusion on
unconstitutionality depends on a “standard of review” that has not
been adopted by any federal court to date in such cases.

The “standard of review” can make or break a case, for it
determines how high a constitutional bar must be cleared to validate a law. Usually
the “standard of review” is set high for alleged violations of
fundamental rights and not so high for ordinary rights. The courts decide which
rights are fundamental and what standard of review to apply. Under the highest
standard, “strict scrutiny,” applicable to such claims as race
discrimination or violations of the First Amendment freedoms, statutes can
rarely pass muster. Under the common standard, called the “rational
basis” test, a law will often be upheld, because some sensible reason for
the law is all that is required.

The reader will look in vain if he attempts to find these concepts in
the text of the Constitution itself; they are inventions of twentieth century
Supreme Court jurisprudence. In the past 50 years, the Court has taken
contradictory positions on how it determines what rights deserve strict
scrutiny to protect them and which are not. (Compare the opinions that upheld anti-sodomy laws in 1986 and invalidated them in 2004.) The decisions
are complicated by an in-between status called “intermediate
scrutiny.” Race discrimination falls under strict scrutiny; sex
discrimination comes under intermediate scrutiny; and discrimination against
red-haired or left-handed persons receives only a check for a rational basis.

The President, perhaps recreating his salad days as a professor of
constitutional law, has crafted a legal argument that intermediate scrutiny
must be applied to DOMA. He says he cannot find any arguments powerful enough
to sustain the law under that standard. This flies in the face of decisions in
the First Circuit, where two of the DOMA appeals are pending, that indicate a
rational basis standard of review is appropriate. In fact, there is no decision
of an appellate court to date that adopts the President’s opinion of the
appropriate standard of review. In this respect, the legal basis of the
President’s action is highly questionable.

Also questionable are other aspects of the President’s rationale. He
assumes without any discussion that defining marriage discriminates against
gays and lesbians because of their sexual orientation. But that is not at all
obvious. People’s right under Lawrence v. Texas to sexual activity of any
orientation is not affected, in any form, under DOMA. Being married is beside
the point. Many other types of devoted, loving couples are disqualified by DOMA
from obtaining federal benefits: polygamists, close kin, and others who simply
find a legal marriage to be irrelevant. Sexual orientation may not be the focus
of what DOMA is about.

The President also relies on the immutability of sexual orientation. He
says the alternative view, that it is capable of being changed, is refuted by
“a growing scientific consensus.” His only citation of authority for
that claim is a book written by a federal appellate judge as a private
individual. A review of the literature demonstrates that no such consensus
exists. (1)

Moreover, it is wise to be very sceptical of social science research of
any kind, for such research is often skewed by the biases of researchers, vague
and poorly-worded surveys, lack of rigor in measuring cause and effect, sample
selection biases, poorly-conceived research methods, and lack of sufficient
sample sizes to provide acceptable confidence levels. In a related field,
medical research, it has recently been found that over one-half of published
studies reach erroneous conclusions because of poor research methods. Social
science is notoriously more slippery than the physical sciences of medical
research. If the research in the hard medical sciences cannot be relied upon,
no one ought to put much confidence in social science studies of any type. (2)

Regardless of the weakness of his policy and legal analysis, the
President’s directive leaves the lawsuits without an advocate that will defend
DOMA. What can be done to obtain such an advocate? It is not completely clear,
but past precedent is somewhat encouraging. In INS v. Chadha, the Court of Appeals invited the
Senate and the House of Representatives to file briefs separately as amici
curiae in order to obtain the benefit of advocacy in support of the provision
that the Justice Department and INS would not defend. Apparently each house
engaged an attorney and filed a brief in the Court of Appeals and the US
Supreme Court. In the case, United States v. Lovett, both houses agreed to
engage a special counsel to appear on behalf of Congress in the trial court and
then on appeal. In the DOMA cases, perhaps the House of Representatives can
engage counsel for that purpose by itself, for it is unlikely that the Senate
will go along.

In the alternative, the federal courts may allow Congress to enter the
case as a party when the Justice Department bows out. The Court in Chadha
commented, “We have long held that Congress is the proper party to defend
the validity of a statute when an agency of government, as a defendant charged
with enforcing the statute, agrees with plaintiffs that the statute is inapplicable
or unconstitutional” (462 US 919, 940). If the Senate and House reach
differing conclusions on whether such defense is advisable, is this precedent
sufficient to allow one house to intervene? No one knows.

It would not be seemly for the federal courts to deny one house of
Congress the right to defend a federal statute. American jurisprudence relies
upon adversarial presentations to reach sound conclusions, and this is an
important constitutional issue that will affect society in a fundamental way.

It is not likely that the courts will allow private parties to intervene
for the purpose of defending DOMA, “because
a private party whose own conduct is neither implicated nor threatened by a
criminal statute has no judicially cognizable interest in the statute’s
defense, . . .” (Diamond v. Charles, 476 US 54, 56 (1986)).

Assuming that a defender comes forth, it is likely that he or she will
present a stronger case in defense of DOMA than the Administration was
presenting. The Attorney General admitted that the Administration had abandoned
the grounds that Congress itself cited in support of DOMA. Supporters of family
organizations doubted that this Administration would zealously defend the law.

If lawyers for Congress can now enter the cases, the President may even
have done the defenders of DOMA a favor. Peter Wolfgang, executive director of
the Family Institute of Connecticut, thinks so. “If anything, this
increases the chances of the traditional marriage side,” says
, because it will allow the real advocates of traditional marriage
to fight and have a voice. Supporters of families may end up thanking President
Obama for taking the Government out of the fight if it leads to a better
defense of the law than his Administration was providing.

James S. Cole graduated from Harvard Law School and
practices law in St. Louis, Missouri.


(1)  One need only peruse such works as
Marriage and the Law: A Statement of Principles
by over 100 eminent legal and social science scholars, beginning with Mary Ann
Glendon, Professor at Harvard Law School and Jean Bethke Elshtain, Laura
Spelman Rockefeller Professor of Social and Political Ethics, University of
Chicago Divinity School (Institute for American Values et al., 2006); M.
Gallagher and J. Baker, Institute for Marriage and Public Policy, “Do Mothers and Fathers Matter? The Social
Science Evidence on Marriage and Child Well-Being (2004); and The Witherspoon
Institute, “Marriage and the Public Good: Ten Principles
(2006) for representative studies and results.

(2)  J. Ioannidis, “Why Most Published Research Findings Are False,”
PLoS Med 2(8) (2005); D. Freedman, “Lies, Damned Lies, and Medical Science,
The Atlantic, November, 2010.

James S. Cole graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.