When I learned about Marbury v. Madison in high school civics class I was taught that it allowed the Supreme Court to determine whether a law is “unconstitutional.” Apparently, my understanding is confused because former Constitutional law professor Barack Obama seems to think the White House should have that power too:
President Obama believes that the Defense of Marriage Act is unconstitutional and will no longer defend the 15-year-old law in federal court, the Justice Department announced today.
The decision, which stunned and delighted gay-rights activists, means that the administration will withdraw its defense of ongoing suits in two federal Appeals Courts and will leave it to Congress to defend the law, known as DOMA, against those challenges. It will remain a party to the lawsuits. The law itself remains in effect.
DOMA, signed by President Clinton in 1996, allows states not to recognize same-sex marriages preformed in other states and provides a federal definition for “marriage” that excludes same-sex couples.
Well, I guess it is easier to decide a law is unconstitutional than to defend and uphold the law as he has sworn to do as the chief executive. But if Obama wants to do Justice Kennedy’s job, why don’t they just trade places?
UPDATE: Okay, people took this a bit more literally than I intended.
Obviously, if Obama truly believed the law was unconstitutional he would have a duty to his conscience not to enforce the law. He doesn’t really believe it is unconstitutional because he’s not a complete idiot. There’s clearly nothing intrinsically unconstitutional about DOMA. (The fact that political activists on the Supreme Court may eventually say otherwise does not change that fact.)
All Obama is really doing it trying to use some legalese as a fig leaf to cover his flip-flop on this issue. He’s merely pandering to his base in his usual clumsy fashion.