Obama Administration’s Non-Defense of DOMA and Executive Duty to Represent

Kathleen Tipler

In February 2011, the Obama Administration announced it believed the Defense of Marriage Act (“DOMA”) was unconstitutional on equal protection grounds. The Department of Justice would no longer defend DOMA in court, wrote Attorney General Eric H. Holder, but the Obama Administration would nonetheless continue to enforce it. The decision to enforce but not defend—while not wholly unprecedented—is a peculiar one: the decision to not defend is based on an executive judgment that the statute is unconstitutional, and if a statute is unconstitutional, then an obvious implication is that the statute should not be enforced.

Why did the Obama Administration engage in this particular and peculiar parsing? The Department of Justice (“DOJ”) argued this path both respects the Executive’s constitutional obligation to “take Care that the Laws be Faithfully executed,” as well as the Executive’s obligation to the Constitution. In not defending the statute, the executive branch demonstrates its belief that no “reasonable” defense of the statute’s constitutionality exists. In enforcing the statute until congressional repeal or a “definitive verdict” by the judiciary, the Executive “respects the actions of the prior Congress” and “recognizes the judiciary as the final arbiter of the constitutional claims raised.”