DOJ Shirking Duty in Not Defending DOMA, Critics Say

By Fred Lucas | February 23, 2011 | 6:33 PM EST

David Herman, right, kisses Jeff Hannan after a federal overturned California's same-sex marriage ban on Wednesday, Aug. 4, 2010, in San Francisco. Chief U.S. District Judge Vaughn Walker made his ruling in a lawsuit filed by two gay couples who claimed the voter-approved ban violated their civil rights. (AP Photo/Noah Berger)

Washington ( – The Obama administration’s decision not to defend the Defense of Marriage Act is a case of a politicized Justice Department picking and choosing which laws to defend, critics said Wednesday.

Nevertheless, White House spokesman Jay Carney said Wednesday, the administration “had no choice” but to drop its defense, separate from President Barack Obama’s opposition to the law.

Jordan Sekulow, attorney and director of policy for the American Center for Law and Justice, said the administration had a choice.

“This was political spin,” Sekulow told “This is existing federal law. It is getting tougher and tougher to defend in the current environment. But it is the law of the land. I am certain the administration will keep fighting the challenges to Obamacare. You don’t get to pick and choose which laws to defend.”

The federal Defense of Marriage Act, signed into law in 1996 by President Bill Clinton, defines marriage as between one man and one woman. It also prohibits one state from being required to recognize a “same-sex marriage” from another state.

Attorney General Eric Holder sent a letter to Congress Wednesday stating that the Obama administration would no longer defend the law.

“After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act,” Holder wrote.

“The [legislative] record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against,” he added.

Holder’s letter said the administration will continue to enforce the law until a court rules otherwise. However, critics argue that it is generally the Justice Department’s obligation to defend the laws enacted by Congress and the president regardless of an administration’s position.

Chris Gacek, senior fellow of regulatory policy at the Family Research Council, a conservative advocacy group, also said the Justice Department is neglecting its duty.

“Federal courts haven’t struck down the law yet,” Gacek told “As the Department of Justice, you should give the benefit of the doubt to statutes passed by Congress, not back out of defending them.”

He added, “The DOJ is becoming the Wisconsin Democrats. Does anybody in government want to do their work or just run away?”

Only a member of Congress would have standing to step forward to defend the law now that the Obama administration has opted out, Sekulow said. But the administration dropping the case this late puts Congress in a precarious spot.

“This puts members of Congress in an awkward position this late into the case to start defending the law,” Sekulow told “My guess is that this was decided long ago to make it more difficult for members of Congress to obtain counsel to defend it.”

In the cases of Windsor v. United States in the Southern District of New York and the case of Pederson v. OPM in the District of Connecticut, the plaintiffs are challenging the law on the grounds that Congress cannot decide on “whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny,” according to Holder’s letter.

This is in contrast to previous legal challenges that focused on the whether a state can choose not to recognize a “same-sex marriage” from another state.

White House Press Secretary Jay Carney said Obama believes DOMA is “unnecessary and unfair.”

“Separate from that, or distinct from that is the decision that was announced today which was brought on by a court-imposed deadline, by the Second Circuit, that required a decision by the administration about whether or not this case should require heightened scrutiny, a heightened constitutional review – because this – unlike the other cases in other circuits, there was no precedent, no foundation upon which the administration could defend the Defense of Marriage Act, in this case,” Carney told reporters Wednesday.

“Therefore, it had to basically make a positive assertion about its constitutionality,” he said.

“The Attorney General recommended that the higher level of scrutiny be applied and under that higher level of scrutiny deemed or recommended that it be viewed as unconstitutional,” Carney continued. “The President reviewed that recommendation and concurred. Therefore, again, because of the court-imposed deadline and the necessity that this decision be made, our announcement was made.”

Carney also said, “The administration had no choice. It was under a court imposed deadline to make this decision.”

The ACLJ, a conservative public interest law firm, has been in contact with members of Congress about defending the law, but Sekulow declined to say which members.

“It is the Department of Justice’s job to defend existing law,” Sekulow said. “The administration is acting as if the President Obama and Eric Holder can decide for themselves what is and isn’t constitutional.”

House Judiciary Committee Chairman Lamar Smith (R-Texas) called the administration’s decision “a transparent attempt to shirk the Department’s duty to defend the laws passed by Congress.”

“This is the real politicization of the Justice Department – when the personal views of the President override the government’s duty to defend the law of the land,” Smith said in a statement.

Smith did not address if he would challenge the law.

“The vast majority of the American people believe that the preservation of marriage between a man and a woman is critical to society’s stability and in the best interest of American families,” Smith continued.

“It is not the role of the courts to redefine that institution and impose it on American society. The people alone—through their elected representatives—have that role and responsibility. And the President and his Administration are duty bound to defend those laws in court,” he added.

Carney said the administration wants to see the courts make a final decision on the matter.

“The administration will do everything it can to assist Congress if it so wishes to do that,” he said. “We recognize and respect that there are other points of view and other opinions about this.”