Obama Accused of 'Dereliction of Duty' for Refusing to Defend Marriage Law

By Penny Starr | April 18, 2011 | 6:39 PM EDT

Former Justice Department Attorney Ed Whelan. (CNSNews.com/Penny Starr)

(CNSNews.com) – Ed Whelan, former Department of Justice legal counsel in the George W. Bush administration, testified on Friday that President Barack Obama’s refusal to have his Justice Department defend the “Defense of Marriage Act” in federal court is a “dereliction of duty” and part of an ongoing effort to advance homosexual marriage.

“The Obama administration's decision to abandon defense of DOMA reflects a sharp departure from the Department of Justice's longstanding practice of defending congressional enactments,” said Whelan, who is president of the conservative Ethics and Public Policy Center.

Whelan said the Obama administration “has subordinated its legal duty to its desire to please a favored and powerful political constituency, and it is eager to obscure from the public its stealth campaign to induce the courts to invent a constitutional right to same-sex marriage.”

Speaking at a “Defending Marriage” hearing of the House Judiciary Constitution Subcommittee on Apr. 15, Whelan explained that the Obama administration was, in fact, using a legal strategy to advance its homosexual agenda.

“People have to be naïve to think that it’s anything other than a stealth strategy of step, by step, by step the administration is doing whatever it can to promote same-sex marriage and to induce the courts to adopt that approach,” Whelan said.

Jen and Dawn BarbouRoske, who were married two years ago in Iowa, attended the hearing with their 9-year-old daughter Bre and 13-year-old daughter McKinley. (CNSNews.com/Penny Starr)

The hearing was held in response to Attorney General Eric Holder’s announcement on Feb. 23 that President Barack Obama had decided DOMA is unconstitutional.

The law defines marriage at the federal level as being the legal union between one man and one woman and says that no state is required to recognize a same-sex marriage from another state.

“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder said in February. “The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.”

“Given that conclusion, the President has instructed the [Justice] Department not to defend the statute in such cases,” Holder said. “I fully concur with the President’s determination.”

Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee, said that protecting the institution of traditional marriage and the rights of the people to uphold it are “critical to the future of our country.”

Smith also said that same-sex marriage is not a constitutional issue.

“No one can seriously believe that the Constitution’s authors intended to create a right to same-sex marriage,” Smith said.

But Rep. Jerrold Nadler (D-N.Y.) defended the Obama administration’s decision to not defend DOMA in federal court.

“Rather than defending DOMA in court, Congress should be working to repeal it,” Nadler said.

Rep. Jerrold Nadler (D-N.Y.) said at the April 14, 2011 hearing that Congress should repeal ‘The Defense of Marriage Act.’ (CNSNews.com/Penny Starr)

Nadler also had invited guests in the audience – a lesbian couple and their two daughters – who he touted as one of the same-sex couples in the country who have “embraced this time-honored tradition” of marriage.

In his opening remarks, Nadler recognized Jen and Dawn BarbouRoske (sic), who live together and were married two years ago in Iowa, one of the five states that recognize same-sex marriage. The couple’s daughters, 9-year-old Bre and 13-year-old McKinley, were also in the subcommittee hearing room.

Maggie Gallagher, chairwoman of the National Organization for Marriage, also testified about how DOMA makes the connection between marriage and “responsible procreation” that is “deeply embedded in U.S. law.”

Gallagher said that in 1888 the U.S. Supreme Court ruled that “marriage is the foundation of the family and of society, without which there would be neither civilization nor progress.”

In 1942, the court said, “Marriage and procreation are fundamental to the very existence and survival of the race,” according to Gallagher.

“This is the rationale for the national definition of marriage proposed by Congress in passing DOMA,” Gallagher said, that “civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing.”

Carlos Ball, professor of law at Rutgers State University, defended Obama in his testimony at the hearing.

Maggie Gallagher, chairwoman of the National Organization for Marriage, testified on April 14, 2011 that the federal government's protection of traditional marriage is 'deeply embedded in U.S. law.' (CNSNews.com/Penny Starr)

Ball asserted that “not only was the President entitled to make a decision on the question of heightened scrutiny, the decision he made was the correct one.”

“There has in fact been a long history of discrimination in this country on the basis of sexual orientation,” Ball said.

Rep. Trent Franks (R-Ariz.) said in opening the April 15 hearing that he believed gay, lesbian, bisexual and transgender interest groups influenced Obama’s decision on DOMA.

“The president and his administration had a duty to defend the Defense of Marriage Act but powerful constituencies of the president did not want to president to defend it and, unfortunately, politics trumped duty,” Franks said.