The decision by the U.S. Navy to rescind new guidelines that would have permitted same-sex marriages to be performed in navy chapels in certain states is a simple recognition of the law of the land. The fact that the rescission came only after pressure from Members of Congress who wrote to the Defense Department on May 6 requesting the enforcement of the Defense of Marriage Act (DOMA) is a sober reminder that the Obama Administration continues to play fast and loose with this area of public policy. A quick review is in order.
On February 23, Attorney General Eric Holder wrote to the Speaker of the House that he had concluded, and President Obama concurred, that DOMA is unconstitutional under the equal protection component of the Fifth Amendment. As several commentators pointed out, this formal abandonment of DOMA in the federal courts came only after a series of actions by the Obama Justice Department that actively undermined the best arguments for DOMA in the pending federal lawsuits against it. Specifically, Justice Department attorneys disavowed the stated interest of Congress in passing DOMA to recognize the procreative purposes of marriage; DOJ also failed to cite prior U.S. Supreme Court precedents that turned aside the constitutional arguments against traditional marriage.
Even as it backed away from DOMA, the Obama Administration invited Congress to step forward and assume its legal defense while making assurances that it would continue to enforce DOMA as a matter of policy until its constitutionality was resolved.
Similar assertions had also been made in the context of the repeal of the law against open military service by homosexuals. In fact, last November, when the Defense Department’s working group unveiled its recommendations regarding implementation of a prospective repeal of the law, it noted repeatedly that DOMA made it “legally impermissible” to treat same-sex couples as married under the military’s family policy.
The report included an acknowledgement of the federal court cases challenging DOMA and referred to them as an “evolving legal landscape”—a somewhat inaccurate locution given the fact that most state and federal court challenges to traditional marriage have been defeated. The working group made no mention of any service branch’s intention to begin hosting same-sex wedding services on military bases, though it did refer to a desire to “reshape” family-defined benefits into some type of domestic partner arrangement.
Similar shenanigans are on display in the Obama Administration’s recent actions to undermine U.S. immigration policy regarding homosexual unions. On April 26, Holder issued an order vacating a determination by the Board of Immigration Appeals to deport an Irish citizen who has been living illegally in the United States. Holder directed the board, which is under his department’s jurisdiction, to review the deportation and “determine whether and how the constitutionality of DOMA is presented in this case.” This is, to say the least, an odd manner of enforcing the law.
The decision announced by the navy chief of chaplains, Admiral Mark Tidd, to suspend his previous guidance until further notice brings the navy policy back into line with those of the other service branches, which had rightly maintained their fealty to DOMA and the rule of law. As Representative Todd Akin and 62 colleagues wrote to Secretary of the Navy Ray Mabus, “It is not the place of any citizen of this country to pick and choose which laws they are going to obey. We expect citizens sworn to defend those laws to set the example in their application.”
And we expect the Department of Justice to defend the laws as written too, but that seems too much to ask.