The Obama administration has announced it will no longer try to defend Section 3 of the federal Defense of Marriage Act from lawsuits alleging the law is unconstitutional. (The law forbids the federal government from recognizing any marriage other than that between a man and a woman.)
The decision is big news, but probably not as big as some have suggested. In real terms, it probably doesnâ€™t change much at all. As Attorney General Eric Holder noted in the announcement:
â€œSection 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.â€
In other words, itâ€™s still law, and despite concerns about constitutionality, the Obama administration will still honor it. Other parties, including members of Congress, are also still free to defend the law from constitutional challenges already underway in several federal court jurisdictions.
One of the constitutional issues at stake involves states rights. Marriage has always been regulated and defined by the states; the federal government, for example, does not issue marriage licenses, and nothing in the Constitution gives it the power to do so. The entire area of family law â€” marriage, divorce, child custody, etc., â€” has been a state responsibility.
Last year, a federal judge in Massachusetts â€” a Nixon appointee â€” ruled the law unconstitutional on just those grounds, citing the Tenth Amendment:
It is a fundamental principle underlying our federalist system of government that â€œ[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.â€ And, correspondingly, the Tenth Amendment provides that â€œ[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.â€ The division between state and federal powers delineated by the Constitution is not merely â€œformalistic.â€ Rather, the Tenth Amendment â€œleaves to the several States a residuary and inviolable sovereignty.â€ This reflects a founding principle of governance in this country, that â€œ[s]tates are not mere political subdivision of the United States,â€ but rather sovereigns unto themselves.â€
Despite their professed reverence for the Tenth Amendment â€” U.S. Rep. Phil Gingrey, you might recall, said â€œthe very future of freedom and limited government depends (on it)â€ â€” I doubt many conservatives will find the judgeâ€™s logic convincing.
â€“ Jay Bookman