U.S. Sends Conflicting Signals On Gay Marriage Law

Same-sex couple Nowlin Haltom and Michael McKeon hold as sign calling for the right to marry outside the County Clerk's Office in Los Angeles on Valentine's Day, February 14, 2011.
Same-sex couple Nowlin Haltom and Michael McKeon hold as sign calling for the right to marry outside the County Clerk's Office in Los Angeles on Valentine's Day, February 14, 2011. Robyn Beck/AFP/Getty Images

The Obama administration says it will continue to deny health care benefits to the same-sex legal spouse of a federal court employee despite the fact that it has abandoned its court arguments in support of the Defense of Marriage Act.

Known as DOMA, the 1996 law bars the federal government from recognizing same-sex marriage. On Monday, the administration took the latest in a series of convoluted actions relating to the statute.

Last week, the administration stirred up a tempest in the legal community when it notified Congress that it would no longer defend DOMA as constitutional.

It was the first time the administration has notified congress of a refusal to defend a statute in court. The administration's approach differed markedly from the way it dealt with the "don't ask, don't tell" law, which the administration did defend in court, but persuaded Congress to repeal. Dealing with DOMA, the administration did the opposite. It has abandoned the law in court, but has not asked Congress to repeal it.

An 'Incoherent' Switch?

Until last week, the administration had defended DOMA, but Walter Dellinger, who served as solicitor general in the Clinton administration, contends that throwing in the towel was the right course for the administration at this point.

He notes that the administration for the first time was going to have to articulate whether a law that singles out homosexuals for different treatment should be treated with special skepticism by the courts. The Justice Department "was going to have to argue that" there had "been no discrimination on the basis of sexual orientation," Dellinger says. And, given a legislative record replete with comments hostile to homosexuals, "that is an argument that neither the president nor the attorney general believe."

Harvard law professor Charles Fried, who served as solicitor general in the Reagan administration, calls the administration's rationale for switching positions "incoherent." Although Fried says his personal view is that the law is unconstitutional, the Justice Department, he maintains, is duty-bound to defend any federal law as long as some reasonable argument can be made to support it — even though the argument may ultimately be a losing one.

"The reasonable argument is that, in terms of tradition and in terms of the view of the majority of the people of the United States, marriage is between one man and one woman," Fried says.

Benefits For Same-Sex Couple

In notifying Congress of its decision not to defend DOMA in court, the Obama administration said it would continue to enforce the law so that Congress could defend the law if it wishes to in court. In other words, the administration said it would, with one hand, enforce the law in order to preserve a legal case for Congress to defend; but at the same time, the administration would tell the courts it believes the law is unconstitutional.

Thus, in Monday's California case, the administration said the federal Office of Personnel Management would continue to deny health care benefits to the legal, same-sex spouses of federal court employees. Last week, the administration said the Internal Revenue Service would refuse to recognize the marital status of an 81-year-old widow who in 2007 legally married her female partner of 44 years. The IRS action means the widow owes $360,000 in estate taxes that would not be owed if her spouse were a man.

Some former Justice Department officials are critical of this two-track approach, contending that if a president really thinks a law is unconstitutional, he should not enforce it.

Shannen Coffin, who served in the Bush Justice Department and as counsel to former Vice President Dick Cheney, says "it seems incongruous to conclude that the administration will continue to enforce a statute that they have found flatly unconstitutional."

Coffin agrees, however, that the issue of enforcement is something of a "conundrum" that forces the president to either take apparently contradictory positions or usurp the power of the legislature by unilaterally refusing to enforce a law.

George Washington University law professor Orin Kerr also contends that "the administration is in an impossible situation" because "they're going to get criticized no matter what they do, depending on what political interest is offended by their decision."

Precedent

While the administration's DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.

During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote. Solicitor General Kenneth Starr was recused in the case, so the lead counsel for the government in the case was Starr's deputy, a fellow by the name of John Roberts, now the chief justice of the United States.

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