The presidential decision announced Wednesday — that the Obama administration will no longer defend the Defense of Marriage Act passed by Congress in 1996 — creates an unnecessary dispute between two branches of the federal government, and indirectly degrades the third.
Simply put, it is the executive branch’s responsibility, through the Justice Department, to defend legislation that is dutifully and legally passed by the legislative branch. It should not pick and choose which laws it wants to defend before the judicial branch.
Furthermore, the decision by President Barack Obama reflects a position that could have unwanted consequences for Obama and his supporters. As The Washington Post noted, if the same thinking is adopted by a Republican president who might be elected in 2012, he or she might very well decide not to defend the health care reform law passed by Congress last year.
Or perhaps some future Congress may decide to pass a civil unions law along the lines of what the Colorado Legislature is now contemplating. A socially conservative president could opt not to defend that law in the courts.
We offered our views on civil unions and marriage in an editorial earlier this week. We believe it would be better if the government sanctioned civil unions or contracts between all people who want to join their lives and their assets, and let organized religious groups handle the religious side of marriage, free from any government involvement.
However, Congress did adopt the Defense of Marriage Act, which prohibits the recognition of gay marriage. And because several states have since adopted laws legalizing gay marriage, a legal conflict between the state and federal laws is inevitable.
Congress has the right to seek legal counsel to defend the law, but it shouldn’t have to go outside the Justice Department to do so.
And it is the courts — not the executive branch — that must ultimately determine whether the law is constitutional.
If he is convinced that the law is wrong, Obama should work with Congress to change it through the legislative process or see the issue through in the judicial system. He shouldn’t try to legislate by default by refusing to defend the law.