Academic highlight: DOMA and separation of powers

In March, the Court will hear argument in two cases challenging the constitutionality of laws forbidding or discouraging same-sex marriage. At the heart of these cases are weighty questions about whether the Constitutions Equal Protection Clause protects the right of same-sex couples to marry. But they also raise significant issues about the appropriate role of the three branches of government in enforcing and defending the law. Those latter questions are the subject of debate by contributors to Fordham Law Reviews recent symposium, entitled Defense of Marriage Act: Law, Policy, and the Future of Marriage.

Professor and former Solicitor General Charles Fried kicked off the symposium by criticizing the Obama administrations refusal to defend the Defense of Marriage Act (DOMA), which he believes is at odds with the longstanding tradition of the Office of the Solicitor General to defend even laws of questionable constitutionality. (Interestingly, Fried began his remarks by declaring that he “thinks DOMA is clearly unconstitutional.”) Professor Dawn Johnsen, former Acting Assistant Attorney General heading the Office of Legal Counsel, defended the administration’s decision to abandon its legal defense of DOMA. Although a Presidents refusal to defend a law should be rare, she believes it is justified in cases such as this, in which the President concludes that there is no reasonable argument to be made in its defense and when a defense would harm other important constitutional interests. She concludes that President Obama and Attorney General Holder acted appropriately and admirably in refusing to defend the law, which she equates with their predecessors refusal to defend laws mandating racial segregation.

In his contribution, Professor Abner Greene observes that the President continues to enforce DOMA, even while refusing to defend it, for the purpose of preserving the issue for judicial review. Greene contends that such interpretive schizophrenia is unnecessary. Instead, he argues that the President should refuse to enforce laws he will not defend, and that Congress should then have Article III standing to sue the President for his effective nullification of their enactments. Greenes discussions of Congresss standing to sue is particularly interesting now that the Court has questioned whether President Obamas decision to enforce-but-not-defend is sufficient to maintain a live case or controversy for Article III review, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives has standing to defend DOMA in the executive’s place. The Supreme Court has assigned Professor Vicki Jackson to address these questions at oral argument. (Marty Lederman has provided detailed discussion of this complicated standing question in several posts on this blog.)