This one is a little bit deep in the legal weeds, but I think this provides fascinating background into Obama and the Justice Department’s decision announced yesterday about the constitutionality of the Defense of Marriage Act.
You’ll recall from yesterday’s post that Eric Holder announced that the DOMA law’s Section 3, holding that marriage is only between a man and a woman, is unconstitutional. Holder’s letter went on to say that the administration would enforce the law when it had to, but if and when the question of that provision’s constitutionality came up in a court of law, it would not defend same.
I began wondering, is there precedent for this? And it turns out there is. There isn’t very much precedent, but there’s precedent, and the precedent that exists is really interesting, which is why I thought I’d share it with you.
Lederman writes that back in 1990, the acting solicitor general of the US (the president’s and executive branch’s lawyer) urged President G.H.W. Bush to declare unconstitutional a provision of a big telecommunications law. The provision in question held that companies with a certain percentage of minority employees and board members would be given preferences in the awarding of broadcast licenses. These are what we call in the US minority set-asides, and conservatives have fought them for a long time.
Why was Lederman writing about it 15 years later? Because the acting SG in question was John Roberts, then up for chief justice of the US Supreme Court.
The really interesting wrinkle in this case was that Bush 41 himself had signed the law! What’s more, he (a Republican president) had appointed three members to the Federal Communications Commission who supported minority set-asides (those were different times, as Lou Reed sang, eh?).
But Roberts persuaded the administration to latch on to a case that might end with the set-asides being declared unconstitutional. It did so, but Roberts lost at the Supreme Court, 5-4.
I should make clear that I although I do not agree with the substantive equal protection argument that John Roberts made in Metro Broadcasting, I do not think it was plainly inappropriate for the Acting SG to file a brief attacking the statutes, assuming the President had concluded that they were unconstitutional and that it was in the best interests of the United States that the Court apply strict scrutiny to federal affirmative action plans. [italics his]
I’m a non-lawyer, but this makes sense to me. This is part of the Crackerjack prize that comes with winning elections. You’re the president – you get to decide, up to a point, what’s in the best interests of the United States. That obviously doesn’t mean you get to wake up one day and decide the First Amendment isn’t in the best interests of the United States. But it does mean that your lawyers, the country’s lawyers (in the DoJ), can make reasonable findings on matters that aren’t truly settled, which gay marriage obviously is not.
And yes, this means that President Pawlenty’s DoJ in 2015 or 2019 could find that the individual mandate (assuming for the sake of argument that it lasts that long) is unconstitutional. Again, it’s part of the Crackerjack prize. It’s part of why the two sides fight so hard over who gets to be president.
All that said, I am aware that this is a sort of side-door way for Obama to come out in support of gay marriage. But apparently the department’s hand was forced by two lawsuits coming up on which it had to deliver opinions by March 11. From today’s NYT story:
For technical reasons, it would have been far more difficult — both legally and politically — for the administration to keep arguing that the marriage law is constitutional in these new lawsuits. To assert that gay people do not qualify for extra legal protection against official discrimination, legal specialists say, the Justice Department would most likely have had to conclude that they have not been historically stigmatized and can change their orientation.
Can you imagine a Democratic president’s lawyers arguing that?
Finally, conservatives will inveigh against what Obama has done here in this fashion, also from today’s Times piece:
“It is a transparent attempt to shirk the department’s duty to defend the laws passed by Congress,” Representative Lamar Smith, the Texas Republican who is chairman of the House Judiciary Committee, said in a statement. “This is the real politicization of the Justice Department — when the personal views of the president override the government’s duty to defend the law of the land.”
Just remember when you hear that over the coming days and weeks that it was a Republican administration that laid the groundwork for this. And that the solicitor general who instigated it was not just any conservative, but a revered member of the flock, Mr. Umpire himself, the man who says that judges are just supposed to call balls and strikes.
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