In February, President Obama directed the Department of Justice to stop defending Section 3 of the Defense of Marriage Act (DOMA).  Immediately, many conservatives decried the announcement.  Curt Levy of the Committee for Justice described Obama’s decision as “outrageous” and a “power grab that . . . would allow him to undermine any duly enacted federal law that he doesn’t personally agree with.”  Similarly, the Washington Times averred that “the public has the right for their laws to be defended by the executive branch.”  For our country to endure, “government can’t be allowed to ignore the law.”

The President’s decision to cease defending a statute under litigation is not unprecedented.  In fact, the Framers expected such efforts by the Executive Branch.  While one can disagree with Obama’s legal reasoning (that DOMA’s Section 3 is unconstitutional), the executive’s refusal to defend an enactment that he believes to be contrary to fundamental law finds support in U.S. constitutional history.

DOMA was passed by Congress and signed by President Clinton in 1996.  The House vote was 342-67.  In the Senate, only 14 cast votes against DOMA.  The act contains two operative sections.  Section 2 provides that no state shall be required to recognize a homosexual “marriage” entered into under the laws of a sister state.  This portion of the law was sparked by a Hawaii court decision that questioned a state statute limiting marriage to opposite-sex couples.  Lawmakers feared that if Hawaiian judges forced the state to recognize “gay marriage,” gay couples would travel there to be “married” and then return home to demand that their home state give full faith and credit to the “marriage.”  Congress designed Section 2, pursuant to Article IV of the Constitution, to clarify that no state could be required to recognize a homosexual marriage.

Section 3 of DOMA provides that, for the purpose of federal law, marriage “means only a legal union between one man and one woman as husband and wife,” and that a spouse “refers only to a person of the opposite sex who is a husband or wife.”  Section 3 clarifies that federal policy makes certain benefits available only to those persons united in a duly sanctioned (heterosexual) marriage.

Section 3 is currently being challenged in federal courts as homosexual couples demand that they receive certain federal benefits (e.g., health insurance and pension-survivorship payments).  DOMA prohibits the plaintiffs from receiving these benefits because the federal government does not recognize the plaintiffs’ “marriages.”  Since 2004, five states—Connecticut, Iowa, New Hampshire, Vermont, and Massachusetts—and the District of Columbia have legalized “gay marriage.”

A president typically orders the Department of Justice to defend a federal statute in court unless the law is unconstitutional based on intervening Supreme Court decisions, the law improperly infringes on presidential powers, or the president himself believes that the law is clearly unconstitutional.  Under his oath to “preserve, protect, and defend the Constitution,” the president must examine a law and decline to support any constitutionally suspect enactment.

Probably the best example of a president’s refusal to execute a duly enacted statute is Thomas Jefferson’s reaction to the Sedition Act of 1798.  The Sedition Act, in pertinent part, punished persons who wrote, uttered, published, or printed “false, scandalous and malicious” statements about the federal government with the intent of bringing it “into contempt or disrepute.”  Violators were to be tried and convicted in federal courts, and could serve up to two years in prison and be fined up to $2,000.  The Sedition Act was a desperate attempt by the Adams administration and the Federalist Congress to punish political opponents and cling to power.

When Jefferson defeated Adams in the election of 1800, he immediately terminated all pending prosecutions under the Sedition Act and pardoned those persons who had been convicted under it.  Jefferson took this action because he believed that the Sedition Act was contrary to the First Amendment’s prohibition against Congress “abridging the freedom of speech, or of the press.”

Jefferson’s treatment of the Sedition Act is best explained in his September 11, 1804, letter to Abigail Adams.  In responding to Mrs. Adams’ criticism of his decision to pardon the men convicted under the Sedition Act, Jefferson averred that “nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them” on the constitutionality of the Sedition Act.  Alluding to the separation of powers, Jefferson observed that both branches “are equally independent in the sphere of action assigned to them.”  Although he believed that the Sedition Act was unconstitutional, he conceded that “[t]he judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment.”  Likewise, “the Executive, believing the law to be unconstitutional, was bound to remit the execution of it.”  Jefferson summed up his understanding of the Constitution as follows:

That instrument meant that its co-ordinate branches should be checks on each other.  But the opinion which gives to judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.

Similarly, in 1832 President Andrew Jackson vetoed congressional legislation rechartering the Second Bank of the United States.  A Supreme Court decision had upheld the constitutionality of congressional efforts to create a bank, and even James Madison, an opponent of Hamilton’s national bank in the early 1790’s, had acquiesced in a national bank during his administration.  Jackson, however, refused to be bound by what he saw as faulty precedent.  Previous Congresses, courts, and presidents might have accepted the bank, but that could not bind Old Hickory.  According to Jackson,

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.  Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The opinion of the judges has no more authority over Congress than the opinion of Congress over the judges, and on that point the President is independent of both.

Of course, there are more recent examples of a president refusing to defend a statute that he believes to be unconstitutional.  In 1990, the Federal Communications Commission asked the Bush administration to defend statutes that required minority preferences in broadcast licensing.  Acting Solicitor General John Roberts, per instructions from the White House, refused to defend this affirmative-action policy and instead filed an amicus brief urging the Supreme Court to declare the statutes unconstitutional.  The Supreme Court upheld the statutes, but did so without the assistance of the Solicitor General.

Although the president has the authority, or even the duty, to abandon a federal statute that he finds unconstitutional, such a decision should not be cavalierly made.  Duly enacted laws (especially those enacted by large bipartisan majorities) should be defended in court unless the president, via a searching constitutional examination, concludes that no reasonable argument can be made in support of the statutes.

In the case of DOMA, the Obama administration greatly errs in concluding that Section 3 should be subjected to heightened scrutiny and is unconstitutional.  When dealing with statutes that the homosexual lobby claims denies homosexuals equal treatment, the Supreme Court has always reviewed the laws to determine whether they are “rationally related” to a “legitimate government interest.”  Under Supreme Court case law, so long as there is any reasonably conceivable state of facts that could provide a rational basis for the classification, the law is a valid exercise of Congress’ delegated powers.

Defining marriage to mean “only a legal union between one man and one woman as husband and wife” is rational.  Thousands of years of human history and virtually all serious scholarship counsel that children are best reared in a home with a mother and father serving as role models.  Across times and cultures, marriage almost always has been confined to one man and one woman.  The reason for this fact of nature is simple.  Traditional marriage provides a crucial link between heterosexual relations, which very often result in children, and familial responsibilities that arise when a child enters this world.  The husband and the wife are bound together in marriage to focus their energies on rearing the child and perpetuating the race.  While not all married couples have children, marriage remains a naturally procreative relationship that is biologically impossible for homosexuals.  Recognizing the heterosexual nature of marriage, Congress can rationally choose to deny benefits to partners of homosexual government employees.  Even if the courts insist that heightened scrutiny should be applied so that Congress must show a compelling government interest, what could be more compelling than protecting and promoting the traditional definition of marriage?

Rather than acting on true concern that Section 3 of DOMA violates our written Constitution, President Obama is playing political games.  His stance on DOMA is meant to give a boost to legislative and judicial campaigns by the gay lobby.  Homosexual activists can assure legislators and judges that abandonment of traditional marriage is no big deal—even the President and the Department of Justice agree that the Constitution cannot support the limitation of marriage to one man and one woman.

In the long run, however, the administration’s refusal to defend DOMA may increase the likelihood that Section 3 will withstand the current onslaught.  In earlier cases where the administration did defend Section 3, the arguments made were halfhearted.  For instance, in a brief filed in 2009 in the Central District of California, the federal government “defended” DOMA by arguing that

[i]n light of society’s still-evolving understanding of marriage, the statute adopted what amounted to a cautious policy of federal neutrality towards a new form of marriage. . . . Congress is entitled to adopt a cautious, wait-and-see approach to newer types of marriage and to society’s still-evolving understandings of the institution.

This is hardly a ringing defense of DOMA and ignores the strongest arguments about procreation and preference for traditional role models.  The claim that marriage is “evolving” is an admission that marriage cannot be limited to one man and one woman.  The door is open to homosexual unions, polygamist unions, sibling unions, and other arrangements not yet contemplated.

With the administration on the sidelines and not sabotaging the statute’s defense, conservative congressmen and legal scholars can now take the lead in asserting Section 3’s constitutionality.  The most persuasive arguments can be presented, and the administration’s agents will not be using valuable time to spout drivel about the evolution of marriage.

In short, conservatives should not waste their breath contending that the administration abandons the rule of law by not defending DOMA.  The president has the right and duty to recall Department of Justice lawyers when he reasonably believes that they are defending an unconstitutional act.  Just as Jefferson treated the Sedition Act as unworthy to be called law, so can Obama treat DOMA, if he has reasonable constitutional concerns.

The difference, of course, is that Jefferson based his arguments on the written Constitution—the clear language of the First Amendment prohibiting Congress from passing any law that restricts the freedom of speech.  Jefferson correctly pointed out that neither Congress nor former President Adams could point to any delegated power that supported the Sedition Act.

Unlike Jefferson, Obama is unable to cite any clear provision of the Constitution that compels the federal government to recognize alternative relationships as marriages.  Throughout Anglo-American history, heterosexual marriage has been a stabilizing influence on society.  Neither the drafters nor the ratifiers of the Constitution of 1787 or of the 14th Amendment contemplated that constitutional law would require the federal government to accept a formula for marriage other than one man and one woman.

While the President’s position on Section 3 is off the constitutional reservation, Americans are better served without a fifth column appearing in court to undermine DOMA covertly.