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Response from Alan J. Reinach

Discussion Question: Defense of Marriage Act Unconstitutional?

President Barack Obama recently ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which defines marriage as only between a man and woman. “Classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," said Attorney General Eric Holder, and the key provisions in the law "fails to meet that standard and is therefore unconstitutional." Do you agree with the administration that the act is unconstitutional (why or why not), and what, if any, implications may this have for religious liberty?

Set aside your ideas about marriage, just for the moment, if it is even possible to avoid emotional responses to a discussion of the legal issues swirling around marriage. Regardless of your views about whether marriage should be restricted to a man and a woman, or should include same-sex couples, the announcement by the Justice Department that it will no longer defend the Defense of Marriage Act (DOMA) is a genuinely frightening development.

DOMA was enacted by Congress during the Clinton era, to assure that Federal law would continue its commitment to defining marriage in heterosexual terms. Whether you like it or not, agree with it or not, it is the duly enacted law of the land.

In our republican form of government, the Executive branch is charged with duly executing the laws, not making unilateral decisions on what the law should be. To be sure, the Justice Department has a right to its opinion, but it does not have the right to pick and choose which laws it will defend or uphold. It is shirking its constitutional duty if it fails to uphold, defend or execute the laws.

A UCLA Law Professor who believes DOMA should be repealed, Adam Winkler, writing in the Huffington Post, cited numerous examples of other laws that another president may decide to regard as "unconstitutional"' and refuse to enforce, laws as varied as the Civil Rights Act and background checks on firearm purchases. Winkler is right: this sets a very dangerous precedent. It is a precedent that has the potential to establish the Executive Branch as a law unto itself.

Consider: the Supreme Court has twice ruled that sexual orientation is not a "suspect class," and laws having a discriminatory impact on gays are not constitutionally suspect. Attorney General Holder, writing to explain his decision not to defend DOMA, disagreed. He argued that sexual orientation should be considered a suspect class and laws discriminating against gays subjected to "heightened scrutiny."

Holder's perspective is certainly legitimate, and held by many who contend that the lawstreat gays unfairly. Indeed, there is a vigorous ongoing debate about how sexual orientation ought to be treated under the law. A democratic society canendure such debates. But Holder would unilaterally reject the Supreme Court's rulings, and insist that the Executive Branch has the right to act on the basis of what it thinks the law ought to be, rather than on the basis of what the law is.

Chief Justice John Marshall, writing at a time when my teenagers think I was still in law school, declared famously that it is the province of the Supreme Court to determine what the law is. For two centuries, our nation has enjoyed a balance of power among the three branches of government. Congress passes the laws, the Executive branch administers them, and the Supreme Court resolves disputes about their meaning and constitutionality.

Despite the accumulation of power in what has been regarded as an "imperial presidency," the Executive Branch has rarely so blatantly expressed its contempt for the rule of law. Richard Nixon famously told interviewer David Frost that "if the president does it, it's legal." Eric Holder is perilously close to keeping company with Nixon. John Yoo and Jay Bybee authored memos during the Bush presidency purportedly analyzing constitutional and international laws, and contending that various techniques euphemistically known as "enhanced interrogation," but commonly referred to as "torture" were legal. As outrageous as these memos were, they at least made a show of respect for the rule of law.

Two principles have been equally enshrined in the American legal tradition: separation of powers among the branches of government and marriage. Holder has now taken on both established principles. It is a law of physics that to every action, there is an equal and opposite reaction. Hold onto your hats. Here comes the backlash!

Photo of Alan J. Reinach

Author: Alan J. Reinach

Alan J. Reinach is Executive Director of the Church State Council, the religious liberty educational and advocacy arm of the Pacific Union Conference of Seventh-day Adventists, representing five western states: Arizona, California, Hawaii, Nevada and Utah. His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws. Reinach is also a Seventh-day Adventist minister who speaks regularly on religious freedom topics, and is the host of a nationally syndicated weekly radio broadcast, “Freedom’s Ring.” He is the principal author and editor of Politics and Prophecy: The Battle for Religious Liberty and the Authentic Gospel, and a frequent contributor to Libertymagazine.

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