In a previous post, I detailed how President Obama was bypassing Congress to institute a wishlist of liberal policies including unionization, cap and trade, and net neutrality. Now Obama is attempting to bypass the judiciary on the Defense of Marriage Act.
Every state is required by the full faith and credit clause of the U.S. Constitution to recognize the "acts, records and proceedings" of all other states. Since marriage is included in this group, all states were originally required to recognize the gay marriages performed in all other states. Effectively, a gay couple could get married in Massachusetts and move to Texas and still retain all the rights of a married couple. The Defense of Marriage Act or DOMA made an exception for gay marriage, allowing some states to choose not to recognize gay marriages performed in other states. Passed by super majorities in both houses and with bipartisan support, the left saw this as a way to allow gradual implementation of gay marriage on a state-by-state basis since a federal law would likely be decades away and the right saw this as a way to contain gay marriage.
DOMA is very likely unconstitutional since a law cannot supercede the Constitution and the odds of it being eventually overturned by the Supreme Court is very high. Regardless, the executive branch is duty bound to defend the laws of the land in court when challenged. Obama has recently said that he will not defend the law in court, abdicating his Constitutional duty. Obama has said that the law is unconstitutional and he is duty bound to "uphold, protect and defend" the Constitution. While this is undoubtedly true, Obama is NOT the one who determines what laws do and do not pass Constitutional muster, the Supreme Court ultimately does this.
Imagine if a conservative President refused to defend Roe v. Wade in court because it is blatantly unconstitutional. It is certainly stretching the bounds of the Constitution to say woman have a Constitutional right to an abortion even if a case for a legal one could be made. The Right To Privacy on which it is based it not found in the Constitution, even the majority opinion written by Justice William Douglas, had to admit that Constitution did not specifically mention a right to privacy but, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance... Various guarantees create zones of privacy." To take it from privacy to the right to an abortion is an even more tangled path.
Many libertarian lawyers, although in the minority overall, including Andrew Napolitano and Deroy Murdock believe that an unborn child has the same basic right to life as has any adult, and find no basis for denying to an unborn child the same rights and protections under the law as any born child or adult would enjoy. If a compelling case could be made (and I believe it can be) would a President have a right to not defend Roe v. Wade?
The answer to that is no. Regardless of the morality of the issue, the President must defend the Constitution as it is understood by the courts, not merely as he understands it. To be fair, the right has also refused to defend laws that it deems unconstitutional on at least two occasions. By refusing to perform his constitutionally mandated duty, Obama opens himself up to impeachment although no one is seriously considering it at this time. By not defending a controversial law, Obama also opens the door for his successors to similarly not defend laws that they find ideologically inconvenient. The House has voted to use their lawyers to defend the law and DOMA is still the law of the land at this time. If a court overturns it, it will end up at the Supreme Court and will likely remain overturned. If that it the case, then so be it but at least we will have heard from 7 judges that were appointed to interpret the law instead of one man who wasn't.
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