by Burt Likko
There couldn’t be anything to worry about in President Obama’s ordering the Justice Department to stop defending the Defense of Marriage Act, could there be? After all, this is a recognition of the essential truth that there is no legally justifiable reason to reserve marriage just for opposite-sex couples, right?
First, it’s not a complete reversal of position. It’s an order to not defense section three of the federal DOMA, which states that for purposes of federal law, marriage is defined as only one man and one woman. It leaves open the question of whether the Full Faith and Credit Clause compels a state to recognize a same-sex marriage from another jurisdiction, or whether Congress appropriately exercised its powers under the Full Faith and Credit Clause to allow states the latitude to recognize or disregard such a marriage.
Second, Orin Kerr at the Volokh Conspiracy notes that by simply doing this — exercising an independent review of whether a law is Constitutional or not and acting appropriately in response to that review — the executive branch is advancing and maintaining a claim that it possesses a right of independent constitutional review, and advancing the claim it may disregard a law that it finds to be unconstitutional based on theories and reasoning which are in dispute at the time they are adopted. Prof. Kerr claims that this is the very position articulated by John Yoo in his infamous “torture memos.”
I think this is something of a stretch, a scare about what might be over there where there is really no “there” there. We should want the President and the Attorney General to independently consider whether a law passed by Congress is Constitutional, and I want the President to use his discretion and inherent authority — in fulfillment of his oath of office — to prevent unconstitutional laws from being enforced and to strike them from the books. The opposite result — the President enforcing and implementing all laws by rote without considering their Constitutionality — reduces the Presidential oath of office to vacuous verbiage.
