Apparently, Eric Holder as Attorney General just announced that critical sections of the Defense of Marriage Act is unconstitutional, and that the Obama administration will no longer seek to enforce it in court.
There will be all sorts of screaming and yelling from the political right-wing on this, but bear in mind… there’s only one politician in America right now who was first in his Harvard law school class, Editor of the Harvard Law Review, and is also a published constitutional scholar in his own right.
Right, that would be Mr. Barack H. Obama.
Oh, and in case there’s any doubt about this…
Article 4, Section 1 of the U.S. Constitution states:
Article IV – The States
Section 1 – Each State to Honor all others
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
That means that if a state like, say, my home state of Connecticut passes a law that says that we issue marriage licenses (a public record) to a male-male couple, or a female-female couple, then even Mississippi has to respect Connecticut’s choice to issue that marriage license, and respect it as much as they expect Connecticut to respect a Mississippi marriage license.
The seventh graders in my history class get this. It was obvious the moment they read this clause in the Constitution.
Hello! I hope that you pointed out to your students that, with all due respect to the President and his constitutional scholarly abilities, he is not a member of the Supreme Court. The DOMA is the law of the land right now, signed into law by President Obama’s predecessor. The President, as the executive branch, is sworn to uphold that law (until it is changed). By your logic I assume that you would be OK with a future Republican President refusing to enforce the Affordable Health Care Act.
Thanks! I enjoy reading your blog!
Thanks for reading.
In truth, the president is sworn to uphold the Constitution as the supreme law of the land. The power of the Supreme Court to decide constitutionality or un- isn’t in the Constitution. It’s a power that Chief Justice John Marshall claimed for the court in the decision Marbury v. Madison. So if a president in the future laid out clear constitional grounds for abnegating the enforcement of the Affordable Health Care Act, and laid out clear constitutional grounds for doing so, as the Obama Administration has done after their own thorough review of their success (failure, really) in defending the Defense of Marriage Act before the lower courts, then I for one would cheer.
I think most Americans would howl for blood, though, if a cherished entitlement were swept away by a single hand. And the history of our country suggests strongly that presidents regularly ride roughshod over our lesser laws when they can get away with it. Jefferson bought Louisiana without the benefit of constitutional grounds, and Andrew Jackson sent the Cherokee on the trail of tears despite the explicit forbiddance of the Supreme Court, and Lincoln suspended habeas corpus, and both Roosevelts found ways to circumvent the law for the sake of the country’s survival. So did Ronald Reagan, in circumventing the arms-trading ban on Iran, and so did Andrew Johnson and Richard Nixon. Some of these men were popular enough to get away with it, and some were not. But deciding what laws to enforce and what not to has been a presidential power-grab since George, John and Thomas formed the first cabinet.