Michael Dorf has an excellent thoughful column explaining the DOJ's mostly (but not entirely) weak defense of the Defense of Marriage Act in the Smelt case. DOMA prohibits the federal government from granting same-sex couples benefits that, by law, flow from "marriage" or are granted to a "spouse" — health benefits, for example.
Why did the Obama Justice Department take such a firmly pro-DOMA position in Smelt? Here is the answer that John Berry, director of the Office of Personnel Management, gave for the Administration:
"This president took a solemn oath to uphold the Constitution of the United States and he does not get to decide and choose which laws he enforces. He has to enforce the laws that have been enacted appropriately and that he has inherited."
That is not entirely wrong. After all, many critics of President George W. Bush objected that he frequently used "signing statements" and other techniques to ignore, gut, or severely under-enforce those laws with which he disagreed, often citing a tendentious constitutional objection under the rubric of the "unitary Executive." If Bush was wrong to rely on his idiosyncratic constitutional views to evade the law, then isn't Obama right when he authorizes his Justice Department to mount a vigorous defense of a law with which he disagrees, namely DOMA?
Maybe not. In rejecting the Bush Administration's exalted view of the President's role in interpreting the Constitution, the Obama Administration may be going too far in the opposite direction. If a law were blatantly unconstitutional, then even though it had been signed by one of his predecessors, President Obama would have not only the right, but the duty, not to enforce or defend that law.
To be sure, under existing precedent, DOMA is not blatantly unconstitutional. Most of the arguments made in the government brief in Smelt are at least colorable.
Yet even that may be too low a standard. The Justice Department, when defending a federal statute, is not in the same position as a lawyer representing a criminal defendant. The criminal defense attorney has a professional duty to make whatever legal arguments she can to win her client's freedom. By contrast, the executive branch's defense of a federal statute invariably has a substantial policy element to it.
For example, the government says in its Smelt brief that DOMA Section 3 is justified by a Congressional decision not "to obligate federal taxpayers in [non-same-sex marriage] States to subsidize a form of marriage their own States do not recognize." That is not merely some position taken by any old litigant in the hope that it will be adopted by a court. It is an official declaration by the federal government that requiring all same-sex couples in the nation to subsidize marriage benefits for heterosexual couples only is what the brief terms "a cautious policy of federal neutrality," but that equality for same-sex couples would unfairly burden opponents of same-sex marriage. Such doublespeak is inconsistent in tone and spirit with the Administration's commitment to repealing DOMA.
In the end, Mr. Berry lets the Administration off the hook too easily because he does not seem to appreciate the real objection to the Smelt brief. The problem was not so much that the government defended DOMA, as it was the way in which the government did so. A president may well consider that his oath of office obligates him to mount a legal defense of laws that he dislikes. But he has a choice about how to mount that defense. In Smelt, the Obama Administration chose poorly.
On the heels of increasing pressure from gay rights groups, Obama signed a memorandum today that ostensibly will provide more benefits to gay-married federal employees. But not really. All the memorandum does is direct all agencies to report back to the Office of Personnel Management on the things they can do within the constraints of the Defense of Marriage Act and, presumably, implement those changes at the end of the review period. There are some benefits that law provides to "families" or "children" — leave to care for a sick family member under the Family Medical Leave Act or long-term-care insurance. It's the second set that the president is moving today to grant. So he's still sticking to the letter of DOMA.