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Tag Archives: Gay Marriage

A lawyer questions the Obama decision not to defend the Defense of Marriage Act.

My central premise could not be simpler.  We have a system of checks and balances for a reason.  Constitutional interpretation is, in all but the broadest sense, the province of the judicial branch.  Meanwhile, one of the checks on executive power is obliging that branch to execute (and, correspondingly, defend) laws duly passed by Congress.  Until the judiciary renders binding authority that casts significant doubt on whether execution of that duty is improper on constitutional grounds, that duty remains intact.  The executive branch fails to fulfill its responsibilities when it fails to defend still-valid law, whether that law is DOMA or Obamacare.

I hope that this is a historical hiccup and not a false loophole to be exploited by future administrations.  Given the tenor of partisan discourse over the last twenty years, my hope in that regard is not substantial.

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There is certainly a lot of talk about the American Constitution these days. Obama, of course, has throw it out the window, according to the Tea Party. The illegal aliens are abusing it according to conservative Republicans. And California’s Proposition 8 tramples it, according to the district  judge who just overruled this democratically established law. Of course, these same constitutional villians have the temerity to appeal to this very Constitution for their side’s views, as well. The rightwing has the tendency to argue that because of our “representative” form of  government that governance should match the weekly Gallup pole rather than the results of the last election. If the majority of the country, according to polling  data, oppose Obamacare, then no Obamacare. It is so obvious! The Religious Right agree (depending on the issue) but add that this is a “Christian nation” and therefore biblical standards are implied in our founding documents. There’s a lot of wishful thinking in this argument, to be sure. So, they argue, if homosexuality is an sin according to the Good Book, then no marriage for gays. Black and white. Right? Of course, I don’t hear a lot of support for stoning heterosexuals who commit adultery, a much more clear biblical mandate. The Religious Left have their “constitutional” arguments as well. While they are very happy to marry two men in a Christian ceremony, this is not the issue, they insist. The issue is civil marriage, they point out. Separation of church and state and all that. Why, it’s the very governing principle that our Protestant founders hard-wired into the Constitution. Shouldn’t gays and lesbians have the same right to the pursuit of happiness as the straight community? And isn’t it the role of government to protect the liberties of the minorities against the prejudices of the majority? It’s stage two of the civils rights movement! It is all so self-evident––to quote one of these devout founding fathers. So this constitution of ours must be a pretty broad document for it to be interpreted in so differently, huh? And that’s  the thing about our beloved constitution that some of us love. And the rest of us, cannot stand.