Affirmative Action through Executive Non-Enforcement, Faithful Execution of the Laws, the Rule of Law, and the Overriding of DOMA/Prop 8

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Affirmative Action through Executive Non-Enforcement, Faithful Execution of the Laws, the Rule of Law, and the Overriding of DOMA/Prop 8

William M. Leiter

            The Obama Administration refused to judicially defend DOMA (Defense of Marriage Act which restricted federal marital benefits to conventional unions),[1] depriving the Supreme Court of jurisdiction under the Constitution’s “cases and controversies” standard.[2] The Court, citing prudential reasons,[3] still went on to find that the congressionally mandated statute was unconstitutional,[4] in part, insisting that states controlled the definition of marriage.[5] California’s executives refused to judicially defend Proposition 8’s state constitutional amendment barring single-sex marriage and supported by a large popular majority when enacted. The Court determined that the “cases and controversies” standard prevented the consideration of the constitutionality of  Prop 8 because those state officers responsible for defending it refused to do so.[6] The prudential concern of determining whether the California majority could define marriage did not prevent the Court from leaving the issue to be determined by one federal district court judge, knowing full well that his ruling to the effect that Prop 8 was unconstitutional would not be challenged by state officers charged with the faithful execution of that state constitutional amendment. What are the standards of executive non-execution of the laws? Do we have a government of laws, and not of men who decide to enforce their own views as to what is prudentially appropriate and what is not?

During the 2008 campaign and thereafter, President Obama emphasized his opposition to DOMA. However, “until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”[7] The Administration’s initial courtroom brief[8] prompted a storm of criticism from LGBT advocates resulting in a “do-over” which focused on the inability of the plaintiffs to bring suit “without,” according to a Washington Post editorial, “dabbling in noxious, outdated and irrelevant arguments.”[9] The DOMA “do-over” did not end with this milder brief. In early 2011, the Attorney General—prompted by the President—decided not to defend DOMA in the courts at all because of its unconstitutionality. Nevertheless, the Administration continued to enforce the statute. To say that DOMA is unconstitutional, but still enforce it, stimulated the Chief Justice to caustically remark: “I don’t see why he [the President] doesn’t have the courage of his convictions….” and administer the law in a fashion “consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”[10] The Chief Justice might very well have concluded that the Administration’s non-defense of DOMA was politically motivated, saying to counsel arguing for DOMA’s demise: “I suppose the sea change [in support of single-sex marriage] has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?....As far as I can tell, political figures are falling over themselves to endorse your side of the case.”[11]

Why these half-way measures-- moderating the defense of DOMA, and finally not defending DOMA in court, but committing to its enforcement?  Has there been a “faithful execution of the laws” as required of the president by the Constitution? Law Professor Arthur Miller underscored the existence of both a written and unwritten constitution for presidents. Critical to the unwritten law guiding presidents is to do what is politically necessary to promote both an administration’s potency, and the general welfare[12]-- including pluralistically deferring to the interests of as many legitimate interest groups as is prudently possible.  President Obama seems seriously supportive of LGBT rights, while understanding the very substantial concern and opposition to them. His Administration’s DOMA convolutions represent efforts at attempting to please “all sides.” However, the problem that the unwritten law of political necessity creates, as Professor Miller noted, “is obvious: the notion of a government under law is lost. Perhaps the concept never existed, except in the myth system…. The President does what the political process allows him to do--or to get away with.”[13] 

Likewise, the California executives who refused to judicially defend Prop 8 were doubtless motivated by notions of the general welfare. But what about the rule of law? Was there a faithful execution of the law on the part of California state executives? We rely on the U.S. Supreme Court to have the last constitutional word. In rejecting DOMA, the Court emphasized the responsibility of the states to define marriage. However, the Court refused to support California’s Prop 8 rejection of single-sex  marriage although it was supported by a large majority through the initiative process--an initiative  overridden by one federal district court judge. Is this the rule of law, or the frustration of the capacity of a state to define marriage?  Prudential concerns prompted the High Court to evaluate DOMA. Should not prudential concerns have prompted the U.S. Supreme Court to decide the issue of California’s capacity to define marriage?  And if the will of the public was to be overridden, why did the High Court not tell us why?  Why was the nature of state power to define marriage left unresolved? 

Copyright 2013 © by William M. Leiter. All rights reserved.

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[1] For a fuller treatment of the Obama Administration and LGBT rights, see William Leiter, LGBT Rights and the Constitution, accessible at http://constlaw100.blogspot.com/2013_04_01_archive.html

[2] U. S. v. Windsor, Slip Opinion # 12-307 (2013), 5-13 of majority opinion. Accessible at  http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

[3] Id.

[4] Id at 13-26.

[5] Id at 14-17.

[6]  Hollingsworth v. Perry, Slip Opinion # 12-144 (2013), 5-17 of majority opinion. Accessible at http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf

[7] Obama’s Gratuitous Insult to Gay Couples, The Daily Dish—The Atlantic.Com, June 12, 2009.

[8] Defendant United States of America’s Notice of Motion and Motion To Dismiss; Memorandum of Points and Authorities In Support Thereof, Smelt v. USA, Case No: SAC V09-00286 Doc (MLGx), August 3, 2009. Available at http://www.scribd.com/doc/16355867/Obamas-Motion-to-Dismiss-Marriage-case

[9] DOMA Do-Over: The Justice Department Gets it Right This Time, The Washington Post, August 31, 2009, Regional Ed., p. A14.

[10] Oral Arguments in U.S. v. Windsor, No. 12-307, Washington, D.C., March 27, 2013, p. 12. Oral argument transcript  available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-307.pdf

[11] Id. at 107-108.

[12] Arthur S. Miller, The President and Faithful Execution of the Laws, 40 Vand. L. Rev. 389 (March, 1987), 394.

[13] Id. at 394, 399.