Tag: Defense of Marriage Act

Unleash the AG’s

So this happened last week:

Attorney General Eric Holder said Monday that state attorneys general are not required to defend state laws they believe to be discriminatory. Specifically, he said those who think state bans on gay marriage are unconstitutional are not obligated to defend them. Comparing today’s gay rights fight to the civil rights movement in the 1950s and 60s, Holder said he would have challenged discriminatory laws on the books during the time of racial segregation. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Holder said.

He encouraged state attorneys general to intensely scrutinize state laws like those that address equal protection, but not to oppose them based upon political or policy leanings. Holder’s comments are not customary for a federal attorney general, as they do not frequently instruct their state counterparts on how to do their jobs.

Holder is taking a lot of fire for this this and it’s understandable. An AG’s job, after all, is to represent the state and to defend its laws in the courts. But … after thinking about it for a while, I actually agree with Holder for probably the first time in his entire tenure.

The second part of Holder’s statement is probably the more important: an attorney general should not refuse to defend a state law simply because he disagrees with it. All lawyers are required to argue cases where they don’t like the side they are arguing. Do you think criminal defense attorneys like defending rapists or murderers? They do it because everyone deserves a defense. They do it because it’s their job. An attorney general should defend his states laws even when he doesn’t like them because that’s his job: to represent the state.

However …

There is one exception, and that is when the attorney believes that the law involved is unconstitutional. In that case, I would posit that not only should an AG not defend a law he believes is unconstitutional. In some cases, he should argue against it.

I know that sounds like a recipe for chaos and I think this power should rarely be invoked. DOMA, for example, was of questionable constitutionality and I think, in that case, the Obama Administration should have stood by it. But when an Administration believes that a law is a blatant violation, should they not defend our liberty in court?

I’ll admit that this is an outgrowth of my view of how our government is supposed to work. Far too often, the judgement of whether a law is constitutional is left the Courts. But it is the sworn obligation of all branches to defend our liberty. The Courts should bounce bad laws, yes. But they don’t always, as the Kelo abomination demonstrated. In those cases, we need the other branches to defend our liberty. We need them to stick up for us when the Courts won’t.

Congress and State Legislatures should not pass laws that they believe are unconstitutional. The President and the Governors should veto unconstitutional laws and refuse to use powers they believe are unconstitutional, even if the courts approve them (warrantless wiretapping, for example). And even if the AG does enforce bad laws, for the sake of order, I have no problem with him arguing that the law is unconstitutional (there will never be a dearth of attorneys willing to argue in favor of the government).

I hate to play the game of If I Were President, but I think it’s relevant here. Just last week, I wrote about the vile unconscionable thing that is asset forfeiture. Should not a President order his Justice Department to end asset forfeiture? It is a choice, not a requirement, after all. And should he not have an AG go into Court and argue that this violates the people’s rights? Why must the engine of government justice always be turned against the citizen and against his liberty?

It’s a little shakier when you get down to the state level, where you could argue that the state AG’s should defend a law even as the federal lawyers argue against it. Or you could argue they could resign on principle. There is a danger of opening a can of worms and politicizing the court process even further. I see that.

But I don’t think this issue is as clear-cut as a lot of people want to make it. I’m not sure gay marriage laws pass the threshold, but I don’t think it’s ridiculous to argue that a state can realize it is in the wrong and refuse to defend an unconstitutional law.

SCOTUS Bites on Prop 8

Batten down the hatches:

The Supreme Court will take up California’s ban on same-sex marriage, a case that could give the justices the chance to rule on whether gay Americans have the same constitutional right to marry as heterosexuals.

The justices said Friday they will review a federal appeals court ruling that struck down the state’s gay marriage ban, though on narrow grounds. The San Francisco-based appeals court said the state could not take away the same-sex marriage right that had been granted by California’s Supreme Court.

The court also will decide whether Congress can deprive legally married gay couples of federal benefits otherwise available to married people. A provision of the federal Defense of Marriage Act limits a range of health and pension benefits, as well as favorable tax treatment, to heterosexual couples.

The cases probably will be argued in March, with decisions expected by late June.

Plenty of comment to come, I’m sure. I expect the Court will decide a little more narrowly than anyone wants. If they uphold the ban, it will be a “leave it to the states” type decision, not a striking down of gay marriage. If they strike Prop 8 down, it will probably be on a narrower basis than proclaiming that gays have the absolute right to marry. Given the composition of the Court, I expect a carefully-worded decision on the former with subsequent caterwauling. But, even as a gay marriage supporter, I would be fine with that decision. I think it would be a big mistake to impose marriage equality through judicial fiat. Let the people of California own up to their mistake and unpass Prop 8 when the time comes.


Batten down the hatches. This is going to SCOTUS:

A federal appeals court Thursday declared that the Defense of Marriage Act unconstitutionally denies federal benefits to married gay couples, a groundbreaking ruling all but certain to wind up before the U.S. Supreme Court.

In its unanimous decision, the three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston said the 1996 law that defines marriage as a union between a man and a woman deprives gay couples of the rights and privileges granted to heterosexual couples.

Two of those judges were Republican appointees. Now to clarify one thing: the part of DOMA that was struck down was on federal benefits. States that do not recognize gay marriage would not be required to if the Supreme Court were to uphold the ruling. And the Court declined to review whether there is a constitutional right to marriage.

I kind of like this decision, actually, which crosses me as very federalist. It allows the states to continue to define marriage as they want but requires the feds, as far as they address marriage, to recognize whatever the states have. I can live with that and I suspect most federalists can as well. I suspect most gay people would be fine with it, too. But this won’t be final until SCOTUS makes a decision.

While I’m sympathetic to the Libertarian argument that the government should just get out of marriage, I don’t see this as really practicable. Like it or not, government is involved in marriage and sort of has to be. When someone dies without a will, the disposition of their property has to be determined by law, not whoever shows up with a trailer. When someone is sick or incapacitated and has not left written instructions, someone has to have power of attorney. Custody of children has to be determined by legal agreement or a neutral arbiter, not whoever has them in their home at the moment. Family and probate courts are an ugly business. But the alternative, in the absence of previous legal agreements, is chaos and heartache.

I would like to see the government back out of it as much as possible and I think there’s room for that. Our tax code could be simplified so that marriage doesn’t matter (the tax benefit to married couples being a key part of the legal argument the First Circuit addressed). Wills and inheritances and death benefits can be given to any beneficiary one cares to nominate (many default to legally recognized spouses). Adoptions could be strengthened to eliminate custody battles between families and gay partners. I don’t think there will ever come a time when government can ignore marriage. But I do think we can reduce its footprint to a minor inconvenience.