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President Obama’s decision to no longer enforce the Defense of Marriage Act is a mistake for the over-arching reason, explained by Richard Epstein, that it uses the legal system to short-circuit the normal political process. As someone who favors gay marriage as a matter of policy, I trust that the American people over time will repeal the bans on gay marriage state-by-state. Seeking to encourage the courts to enact a nationwide ban will lead to an unstable settlement that will only lead to further politicization of family issues best left to the states. For proof, one only need look to abortion and the effects of Roe v. Wade.
Obama’s decision is also an expansive use of presidential power, one that is of a very different dimension from that invoked by President Bush (and by me, when I once worked in the Justice Department). President Obama claims the right here to interpret the laws and the Constitution, and to refuse to defend laws that he believes conflict with his own interpretation of the Constitution. This is substantially the same claim made by President Bush – though I suspect that the Left will not be out in force again to accuse the current president of raising himself above the laws – and flows from his ultimate duty to observe the Constitution as the highest form of law.
But there is an important difference. Obama is interpreting the Constitution at odds with the Supreme Court on a matter of individual rights. Obama claims that laws affecting gays should be tested under the heightened scrutiny standard, which is short of that used to examine laws that classify on the basis of race, but is basically the same as that used to examine laws that discriminate on gender. In the few cases that the Supreme Court has heard gay rights cases, it has never adopted this standard. Instead, it has applied the rational basis test, which is the most lenient standard of review applied to most laws, in striking down Texas’s anti-sodomy law in Lawrence v. Texas.
This is very different than the Bush administration’s invocation of the right to decline to enforce federal statutes at odds with the Constitution. These were usually claims made in legal memos and signing statements, rather than arguments raised in court against individual plaintiffs. Most importantly, these were cases where the executive branch was resisting congressional intrusions into its constitutional authorities. These conflicts would often not arise in court because they occurred in the national security area where the President and Congress have the primary lead. And they involved core presidential constitutional responsibilities to manage the strategy and tactics of ongoing wars and to protect the national security.
Here, President Obama is not defending the constitutional prerogatives of the executive against legislative intrusion. He is trying to change the meaning of the Bill of Rights and the Reconstruction Amendments – where the Supreme Court has recently exercised the institutional lead, and some would say (though not me) has the final constitutional say – in its application to individual citizens. Obama’s claim of power here pushes executive power very far, and I believe it is justified under the Constitution’s original allocation of authority to the President, but it is very different and more expansive than the Bush practice. And the supporters of Obama’s declaration should recognize this or remain hypocrites, yet again, on executive power depending on which political party happens to occupy the office.