Pro-family groups and legal firms have expressed great disappointment with President Barack Obama’s decision to stop defending the Defense of Marriage Act, saying supporters will face new challenges in court.
Several conservative leaders decried Obama’s Wednesday statement advising the Department of Justice to discontinue asserting DOMA’s constitutionality in federal court. They called the move a flagrant disregard for his duty to defend federal law.
Former Arkansas governor and potential presidential contender Mike Huckabee expressed deep disappointment in the president’s decision.
“I find it very disappointing in a time when the economy, world affairs are exploding, the Justice Department would decide this is what they are going to put on the plate today,” stated Huckabee during an event hosted by Christian Science Monitor.
Social conservative and Family Research Council President Tony Perkins criticized Obama for failing to fulfill the duties of his offices for such an easy issue.
“Marriage as a male-female union has been easily defended in court and overwhelmingly supported by the American people. There is absolutely no excuse beyond pandering to his liberal political base for President Obama's decision to abandon his constitutional role to defend a federal law enacted overwhelmingly by Congress,” he responded in a statement Wednesday.
Alliance Defense Fund Senior Legal Counsel Austin Nimocks said the administration is “playing politics with marriage” and has left DOMA virtually defenseless.
“With the Department of Justice now refusing to defend any and all lawsuits against the federal Defense of Marriage Act, the federal definition of marriage has been placed in great legal peril,” he declared.
DOMA defines marriage as “a legal union between one man and one woman as husband and wife,” and the word “spouse” as “a person of the opposite sex who is a husband or a wife” for the benefit of federal laws for items such as federal employee benefits.
The act also re-establishes states’ right to define marriage in their own terms without having to defer to other state rulings.
Nimocks said Obama’s decision will make it harder for proponents and legal supporters of DOMA to assert federal standing.
“The Justice Department has really betrayed every American because not every taxpayer has the right to walk into court and defend federal DOMA. You have to have federal standing and that’s a very narrow window as to who has standing,” he explained.
In the cases of Gill v. Office of Personnel Management and Massachusetts v. United States, it has been the Justice Department’s duty to defend the 1996 law. The department fulfilled that duty despite Obama's "evolving" view on gay marriage and opposition to DOMA. The DOJ filed its last DOMA defense as recent as last month.
Still, social conservatives found fault in the Obama administration's less than whole-hearted efforts.
“The defense of the Department of Justice to the Defense of Marriage Act has always been weak,” asserted Nimocks.
Court documents released last month show that the DOJ previously defended the statute asserting that DOMA establishes uniformity in the federal application of law and defines marriage in a way that builds on the basic understanding of marriage, a formal union between a man and a woman.
However, the DOJ also asserted that opinions on marriage and same-sex unions are changing.
“Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society,” the DOJ brief states.
Conservatives note that the Justice Department failed to assert that the act is a an effort to encourage heterosexual marriage because of the union's ability to naturally produce children in a stable family environment. This, legal groups say, is the argument that Congress made when establishing DOMA.
Legal groups such as ADF and the Foundation for Moral Law, led by former Alabama Chief Justice Roy Moore, have intervened on the government’s behalf with briefs and motions. Without the government’s support, ADF and the Foundation of Moral Law could be left struggling to explain their legal standing or authority to defend DOMA.
In California, supporters of Proposition 8 met tough questioning in the Ninth Circuit Court about their authority to defend the voter-approved amendment in lieu of state officials. Former Gov. Arnold Schwarzenegger and former Attorney General Jerry Brown both refused to defend the amendment defining marriage as a union between one man and one woman.
The state’s Supreme Court recently announced that it will decide the standing of the supporters for the Circuit Court.
Nimocks noted that DOMA’s legal supporters have an easier out.
“We do know that and believe that the House and the Senate would have standing to potentially intervene in the cases and defend federal DOMA, doing the Department of Justice’s job for them,” he shared.
In the past, ADF filed a motion on behalf of Rep. Lamar Smith (R-Texas) to intervene in the DOMA appeals. Smith has not publicly announced any plans to step in on the two pending DOMA appeals.
However, in some talking points, the Judiciary Committee chairman chided the president’s inaction, saying, “It is not the role of the courts to redefine that institution and impose it on American society. The people alone – through their elected representatives – have that role and responsibility.”