U.S. Attorney General Eric Holder announced Wednesday that the Obama administration “will no longer defend” the Defense of Marriage Act. DOMA, a 1996 law that allows states to not recognize same-sex marriages performed in other states, was seen as an appropriate compromise in the mid-90s, but has since become a lightning rod for criticism from gay rights activists.
In his announcement, Holder clarified that the administration will continue to enforce the law, as is its constitutional responsibility, but that both he and President Barack Obama had concluded that the law itself, in particular Section 3, which defines marriage at the federal level as between a man and a woman, was not constitutional.
Therefore, the President has encouraged the courts to re-evaluate the Act and instructed the Justice Department to stop defending it in trial, while still permitting civil society groups to do so.
It is important to note that Obama’s decision does not, despite a widely seen Fox News report that was subsequently shown to be completely false, shirk the executive branch’s constitutional duties. The administration is not breaking any laws.
It is, however, throwing the considerable power of the Presidency behind the cause of gay rights in a controversial way, as it is unclear that the Justice Department’s role is to actively oppose in court the very same laws it is expected to enforce on the street.
For this reason, Obama and Holder’s decision sets a dangerous precedent. Regardless of one’s position on gay marriage — I happen to agree that Section 3 of DOMA violates LGBT community members’ constitutional rights — this is not the proper means through which to reach a desired end.
In part, the problem with the Justice Department’s new policy is that it is part of a trend. Last year, Holder announced that the Justice Department would no longer enforce federal laws against medical marijuana in states that permit its sale and use.
This was another sensible idea, that the federal government should not be wasting its resources chasing the perpetrators of relatively harmless activities sanctioned by the states, but again it was achieved through questionable means.
The combination of these two policies establishes the expectation that Presidents can use their executive power to steer the law a certain way. That is supposed to be the purview of Congress.
Though I have written here before that the American system of government is currently biased in favor of the legislature, the Justice Department’s actions in these instances go too far and target the wrong policy areas.
It is important for the President to have more autonomy in economic and national security policy, which can be dangerously muddled by Congressional politicking.
On social matters such as gay marriage and drug enforcement, however, it is the give and take of Congress that leads laws to change gradually over time.
The Obama administration’s new DOMA policy is not only of questionable constitutionality, it is also poor strategy.
By establishing a standard that the President can use the power of the Justice Department to affect change in the law, Obama is leaving room for his hard-fought victories to be overturned easily by future ideological opponents.
The next Republican president could, for example, use Obama’s model to oppose health insurance reform or even gay marriage itself, by lending federal support to states that will surely continue to fight it after its inevitable legalization.
This hypothetical situation demonstrates how shifting the prerogative for social change from Congress to the Executive branch could lead to wilder swings in policy, replacing the gradual reform that has marked most of American history.
Though at times American gradualism can be frustrating, it at least reflects public opinion and avoids the possibility of regression.
Our traditional channels of social change, popular opinion leading to legislative and judicial reforms, are worth preserving.
Despite Obama’s great intentions in fighting DOMA, his new policy risks winning the battle, but losing the war.
Daniel Charnoff is a senior majoring in international relations (global business). His column, “Through the Static,” runs Fridays.