I would appreciate it if someone could explain to me why elected officials in the US refusing to defend the laws they have sworn to protect. Last week the Obama administration announced that it will not support the constitutionality of statutes blocking same-sex military spouses from receiving marriage benefits such as rights to visitation in military hospitals, survivor benefits, and burial together in military cemeteries.

In a letter to the House speaker, John A. Boehner, Attorney General Eric H. Holder Jr. said that the Justice Department believes that such laws, including a part of the Defense of Marriage Act, are unconstitutional. Here is an extract from the letter:

“In accordance with my determination, I will instruct Department attorneys not to defend those provisions against … equal protection claims … and to inform the district court  [that they] cannot be constitutionally applied to same-sex couples who are legally married under state law. As they have in cases challenging Section 3, our attorneys  will also notify the court  of our interest in providing Congress a full and fair opportunity to participate in the litigation. We will remain a party to the case and continue to represent the defendants and the interests of the United States throughout the litigation.”

I don’t understand the legal niceties here, but the notion that Mssrs Obama and Holder will continue to represent the interests of the US seems like a lot of hokum. “Neither the Department of Defense nor the Department  of Veterans Affairs identified any justifications,” wrote Mr Holder. Isn’t defending current legislation part of the job description of an Attorney-General?

This reminds me of the shameful dereliction of duty in the legal fight over Proposition 8, the referendum altering the Californian constitution to ban gay marriage. When the constitutionality of Prop 8 was challenged, Governor Arnold Schwarzenegger and his Attorney-General, Jerry Brown, refused to defend it. Defending the will of the people was left up to a motley collection of witnesses and a less-than-adequate legal team. It was no wonder that District Court Judge Vaughn Walker sneered that “The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such [biased] disapproval.”

Judges decide on the basis of the evidence and arguments presented to them. If elected representatives refuse to defend statutes, are we really living in a democracy? 

Michael Cook

Michael Cook is the editor of MercatorNet.