The Obama administration's new DOMA position may help a handful of gay couples at the expense of all the…

The law, lawyers, and the court.
Feb. 28 2011 6:35 PM

Half-Empty

The Obama administration's new DOMA position may help a handful of gay couples at the expense of all the rest.

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In that case, however, the harm to the third parties was simply a delay in being paid. Today, spouses denied benefits under Section 3 of DOMA may not be able to secure benefits down the road. In particular, as in Karen Golinski's case, when the benefit includes access to health coverage, delayed benefits may well end up being functionally no benefits at all.

More plausible than the argument from history is the argument that sometimes politics simply demands change happen in increments. I imagine there was resistance at Main Justice to concluding that Section 3 of DOMA violated the Equal Protection Clause. I also suppose there was resistance to the executive taking the position that a federal law enacted before President Obama entered office was invalid. As Walter Dellinger has explained, there are good reasons for the executive branch to be reluctant to conclude that a validly enacted law is unconstitutional. To allow presidents to do so willy-nilly would invite dramatic legal change every time the White House changed hands. Perhaps this resistance meant that a compromise was all DOMA's opponents could secure.

But even if there should be a high bar to an executive finding of unconstitutionality—which in practice is more common than many claim—this doesn't explain or excuse Wednesday's halfway measure. The new Holder position means that the executive branch reaps a political benefit from telling supporters that it's on the side of the angels, without necessarily having to pay all the costs. The executive won't pay a farthing to a same-sex spouse until a federal court orders it to do so. And when that happens, the executive might gamble that blame for the decision will be apportioned between the president and the courts. So if you really want the president to find statutes unconstitutional less frequently, allowing this kind of half-measure has the perverse effect of making that step easier to take. 

The Holder position also saps the executive's claim to take the Constitution seriously. It turns constitutional command into cheap talk, good only for the campaign hustings. Perhaps the currency of constitutional talk has already been debased in the hands of the Tea Party. Even if that's true, it's no reason for the attorney general to give the founding document an extra drubbing. 

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What makes the Holder position on DOMA especially troubling is that it's not the first time this administration has taken a principled rhetorical position while at the same time walking away from a constitutional problem. Consider the president's commitment to end the Guantanamo detentions. Even before new legislation barred transfers from the base, the administration had overseen a slowdown in releases from the base. Gaps between rhetorical commitment and legal practice do nothing to inspire confidence in the constitutional bona fides of our law-professor-in-chief.

Any parent will tell you that the nature of the gift matters less than how it's given. The president's recognition that Section 3's application to Edie Windsor and to Karen Golinksi and all the other married gay Americans is iniquitous and unconstitutional may be laudable. But it's a "gift" that barely benefits the recipients. It's a gift that enables the giver to flout publicly his magnanimity while shifting any future blame to that lurking bogeyman "the judicial activist."

I for one don't wish for this particular gift to be rescinded. But I do wish it had been made properly and without the tainting blush of what looks like bad faith. And yet even if Valentine's Day is long past, perhaps it's not too late. Perhaps President Obama and General Holder can still get this one gift to true equality really, truly, and deeply right.

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Aziz Huq is an assistant professor of law at the University of Chicago Law School.

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