WASHINGTON (BP)–In a monumental decision that some say could help legalize “gay marriage” in America, the Justice Department announced Feb. 23 that President Obama had instructed it to stop defending in court the Defense of Marriage Act, a 1996 federal law that defines marriage as between a man and a woman.
The decision — rare for a president — does not mean the federal government will begin immediately recognizing “gay marriage,” but it does mean the Department of Justice will no longer defend DOMA in a handful of cases nationwide. Even before the announcement, conservatives had criticized the department’s defense of the law as weak. It is possible Congress will step in and try to defend the law, although federal courts are not required to allow Congress to intervene.
Technically, the Justice Department’s decision applies only to the handful of lawsuits against DOMA Section 3, a part of the law that prevents the federal government from recognizing “gay marriages” from states such as Massachusetts and defines marriage within federal law in the traditional sense. A federal court in 2010 ruled DOMA unconstitutional, and the Justice Department initially filed an appeal.
The other major section of DOMA gives states the option of not recognizing another state’s “gay marriages.” The Justice Department’s statement, though, made clear that Obama opposes the entire law, and not just Section 3.
DOMA supporters warn that “gay marriage” legalization would have a wide-ranging effect on society, impacting the tax-exempt status of religious organizations, the religious liberty of private businesses, and the curriculum in elementary schools.
Baptist Press asked Austin R. Nimocks, senior legal counsel with the Alliance Defense Fund — a Christian legal group — to explain the importance of the Justice Department’s decision. Following is a transcript:
BAPTIST PRESS: Why is this significant?
NIMOCKS: It is significant because the American people have a right to expect their laws to be defended by the government officials, and the Department of Justice has been failing to give a full defense of the Defense of Marriage Act for some time, but now has made their no-defense position official and in writing. This is really disappointing with the Department of Justice choosing to appease a small but vocal and wealthy constituency and abandon its duty to the American people.
BAPTIST PRESS: When you say they haven’t been defending it, what do you mean?
NIMOCKS: Throughout the litigation over the federal Defense of Marriage Act, the Department of Justice has expressly disavowed Congress’ reasons for enacting the federal Defense of Marriage Act and instead put forth its own basis for defense, guaranteeing that the case would end the way they wanted it to end — which is not in favor of [traditional] marriage.
BAPTIST PRESS: Is the Department of Justice’s greatest omission in defending it the lack of referencing childrearing and procreation? [Editor’s note: In 1996 the House of Representatives noted that the law was needed to encourage responsible procreation and mother-father homes. Some state courts have cited those reasons in refusing to legalize “gay marriage”]
NIMOCKS: In defending a congressionally enacted statute, like the federal Defense of Marriage Act, the Department of Justice should take as its bases the elements articulated by Congress. And Congress expressly said there are four main reasons we’re enacting the federal Defense of Marriage Act, and instead of using those four bases for it, the Department of Justice expressly disavowed those four reasons and said, “We don’t believe in these reasons. We’re casting them aside.” And they put forth two other reasons of their own which were guaranteed to fail. When the Department of Justice is defending Congress, they should take Congress’ bases for the law and articulate that in addition to any other bases which they know will help the act survive the challenge.
BAPTIST PRESS: What happens now? Can someone else defend it? Is it possible we’re going to see a repeat of what is happening in California?
NIMOCKS: It is a repeat of what happened in California, where the governor and attorney general failed to perform their duties [and defend Prop 8]. Now, the House or the Senate of Congress have a right to try to intervene in the case if they should choose to do so and try to defend the Defense of Marriage Act. Also, there could be other individuals or organizations or parties that could try to intervene in the case and try to defend DOMA. It remains to be seen what’s going to happen.
BAPTIST PRESS: Does the court have to accept Congress’ request to intervene?
NIMOCKS: No. The question is: If the attorney general decides he doesn’t want to defend the law, does the law just go down by default? Our entire structure of our constitutional government then would rise and fall on the opinion of one person. It’s not supposed to be the prerogative of the executive branch to undermine the legal enactments of the legislative branch. But that’s exactly what’s on the table here, where one man — in this case President Obama or Attorney General Holder — has the authority to literally undo a congressional enactment. The executive branch is supposed to enforce the laws enacted by Congress, not undermine them. This is really a tragedy what is happening to our constitutional form of government.
BAPTIST PRESS: If the courts do allow Congress to intervene, could this be good news for the Defense of Marriage Act, with it getting a more robust defense?
NIMOCKS: It certainly could be. If Speaker Boehner and the House of Representatives, for example, decide that they want to intervene in some or all of the pending cases and they assert the bases that Congress articulated for passing the law, that would certainly be a good thing to have — a zealous governmental defendant doing the job that the Department of Justice was supposed to be doing. But it’s unfortunate that the American people would have to look at, for example, the House of Representatives to defend their law when they have someone in the attorney general who is supposed to do that.
BAPTIST PRESS: The Justice Department, in a statement about the decision, said “sexual orientation should be subject to a more heightened standard of scrutiny.” Can you explain what they’re talking about?
NIMOCKS: The suggestion by the attorney general that heightened scrutiny is appropriate is in essence a suggestion that the Department of Justice believes that the concept of sexual orientation should be addressed under the Constitution like one’s race or sex, which is an unprecedented position under the United States Constitution.
BAPTIST PRESS: Why should the Defense of Marriage Act be upheld, and why do we need it?
NIMOCKS: Across this country, from coast to coast, north to south, red states and blue states, Americans believe in marriage. It is vital to the very survival and existence of our society, and it is an important part of the laws that unify us as a country.
Michael Foust is associate editor of Baptist Press. The Southern Baptist Convention has a ministry to homosexuals. Find more information at www.sbcthewayout.com.