bigstock_marriage_certificate__834133

Last week, President Obama announced his Administration would no longer defend the Defense of Marriage Act against court challenges brought by advocates of same-sex marriage. A follow-up letter from the Attorney General to Congress explained that the decision is based on the President’s conclusion (in turn based on the attorney general’s recommendation) that the defining marriage as the union of a man and a woman in federal law violates the equal protection “component” of the Fifth Amendment to the Constitution.

The wording here is carefully chosen because the Fifth Amendment does not contain the term “equal protection.” That phrase comes from the Fourteenth Amendment (enacted after the Civil War) which applies to the states. The U.S. Supreme Court interpreted the Fifth Amendment to incorporate the phrase so as to prevent the anomaly of having school segregation forbidden to the states but not the District of Columbia.

In order to come to the conclusion that DOMA’s definition of marriage as the union of a husband and wife is unconstitutional, the Administration made two significant claims. First, that “sexual orientation” (identifying oneself as gay or lesbian) should be treated the same as race by the courts. Second, that there are no valid justifications for defining marriage as a male-female union.

As a legal matter, both claims are entirely without merit. The vast majority of courts to have considered the issue have concluded that the Constitution does not require treating sexual orientation as equivalent to race. Similarly, at least one federal appeals court, three federal district courts, the high courts of Maryland, New York and Washington, and others have specifically accepted a claim that the attorney general specifically rejected in his letter—that marriage laws are justified because they channel male-female sexual relationships into a union in which a child’s mother and father commit to one another and to the children their union alone can create. When Congress overwhelmingly approved (and President Clinton signed) DOMA in 1996, this was one of the reasons Congress itself gave for enacting the law.

Curiously, however, during the period before last week’s announcement the Department of Justice attorneys were not using it in their defense of DOMA. Instead, they were largely throwing the case by making only narrow and technical arguments and specifically disavowing arguments that had prevailed in many other cases.

That the Administration has had it in for DOMA has not been a well kept secret. After the president announced his desire to see the law repealed, same-sex marriage advocacy groups filed lawsuits challenging the Act’s definition of marriage (they are holding off a challenge to its protection of states from having to recognize same-sex marriages from other states). Initially, as would be typical in providing a legal defense for a law enacted by Congress, the DOJ put forward strong arguments for DOMA’s constitutionality. Then, activists cried foul and demanded the Administration remove these arguments from their briefs in favor of marriage laws. This the government promptly did and they have been absent from the defense of DOMA in the four pending challenges (in Massachusetts, California, New York and Connecticut).

As distressing as this may be for what it says about our legal system, it is not bad strategy if the aim is to see DOMA invalidated by courts. In three of the four states where courts have struck down marriage laws, the attorney generals of the state either did not defend the law or made only a token effort.

This raises a much more salient point. The attorney general’s legal rationale for concluding that DOMA is unconstitutional is not legally sound. It is much longer on conclusion than analysis. So what explains the sudden change from defending the law to deciding that it is absolutely indefensible?

When the President made his announcement about DOMA, his spokesman noted that his personal views about marriage are evolving. Some are skeptical that the president’s campaign trail support for marriage was ever particularly strong, but if we take him at his word we have to grant that he is allowed to change his mind. What he is not allowed to do is to change the Constitution. That is, however, exactly what is being attempted.

If the President would like to see DOMA repealed, the Constitution provides a simple way to achieve that aim. He can convince an ally in Congress to run a bill that would accomplish that result (this wouldn’t be hard to do), he can lobby members of Congress to vote in favor and he can sign that bill when it is approved. The second part provides the rub. The president knows that the American people and the majority of their representatives do not think that marriage is unconstitutional. So, getting rid of DOMA politically is a longshot at best.

Thus, finding another solution is tempting. In the previous half-hearted defense of the law and then in the full repudiation of it last week, the Administration is behaving as if it has found that solution. They can essentially collude with the activist groups who want to have DOMA overturned in court, agreeing with them that the law is unconstitutional and not defending it when challenged. That makes it more likely for a court to strike the law down and, presto, the law is gone without all the trouble of the legislative process.

It may be tempting, but it’s certainly not what the Framers had in mind.

In addition to the damage this behavior may do to our constitutional process, it is also likely to have grave repercussions for marriage. For, if the president and attorney general are correct that marriage is a form of discrimination that violates the Fifth Amendment, it would also violate the Fourteenth Amendment and thus invalidate all state marriage laws. Even if they are not correct (as they are surely not), their evaluation will almost certainly be used in other attempts to get rid of state marriage laws and amendments. Thus, the Administration is sacrificing marriage for political aims.

It is now up to Congress to step forward and defend marriage. The good news is that DOMA will surely get a better defense than it has had to this point. The new legal defense of marriage should also help courts do the right thing. So perhaps marriage will be better off.

Given what’s at stake, we must hope so.