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.

Eric Holder. Click image to expand.
Eric Holder

Last Wednesday was a good day for Edie Windsor. But not so much for Karen Golinski. Or for all the other Karen Golinksis of the world—and there are a lot of them.

Windsor is the plaintiff in a new lawsuit in federal court challenging the denial of federal benefits to the same-sex spouses of federal employees. She's also an immediate beneficiary of Attorney General Eric Holder's decision, announced last week, to stop defending Section 3 of the Defense Against Marriage Act (or DOMA) in court. Last Wednesday, Holder said that after much contemplation, he cannot in good faith defend Section 3's command that the federal government refuse to recognize Windsor's marriage to her partner of 44 years.

But Wednesday's announcement also explained that "Section 3 will continue to be enforced by the Executive Branch … consistent with the Executive's obligation to take care that the laws be faithfully executed." So Golinski, who is a federal court employee in California whose wife has also been denied health benefits under Section 3, got zip last Wednesday. And there are many, many Karen Golinksis—federal employees with same-sex marriages that are valid under the laws of one of the five states (and the District of Columbia) that permit it—but denied benefits under federal law.

There are many more people in Karen Golinski's position than there are plaintiffs in Windsor v. United States—people who are lawfully married to same-sex partners and who will continue to be denied federal benefits triggered by their marriage. And that is the odd outcome of the president's new DOMA policy.

How can the administration both decline to defend the unconstitutional law, while continuing to enforce it? By hiving off the Windsors from the Golinskis with results that makes no kind of sense.

People disagree sharply about the constitutionality of Section 3. The inequity created by the Holder letter, though, raises a distinct concern. While the president claims to have set his face against inequality, he creates a new inequity: Why should Windsor benefit from an executive determination that Section 3 of DOMA is invalid but not Golinski? Holder's distinction between taking a position in court and doing something in practice has an arbitrary feel. A federal court in California has already been struck by this inconsistency. Either a president takes his lumps by standing behind a troubling law or he recognizes that law as unconstitutional and steps away from it wholesale. There is no middle way whereby a president says a law is unconstitutional but continues to wield the law to impose unconstitutional harms on others. 

Holder's own justification for the distinction is rather weak tea. He invokes the president's duty to "take care" that the laws are enforced as prescribed in Article II of the Constitution. By this he seems to mean that the "take care" clause requires the enforcing of a statute, in this case DOMA, but not the equal-protection clause of the Constitution's 14th Amendment. And here I was thinking "the laws" meant all the laws, including the Constitution itself. 

Alternatively, Holder might say that even if the president determines the law is unconstitutional so that he can't defend it in court, he still owes it to Congress to stick with the law until a court says otherwise. But this notion of legislative deference seems backward. If I were a legislator who supported DOMA, I'd much prefer the executive branch to put its energies into the long-term defense of the law rather than to standing behind its short-term implementation. I'd want the law to survive legal challenges more than just get some temporary enforcement.

The best defenses for the weird split-the-baby aspect of Wednesday's decision, I think, sound in history and politics. The executive branch, it turns out, has done this before. In 1943, Congress singled out three federal employees and directed that they be denied salaries because they were, in the argot of the day, "subversives." Their employing agencies complied with this direction even though it seemed in conflict with the Constitution's prohibition on "bills of attainder." When the employees sued for their pay in federal court, however, the executive branch declined to stand behind the law.

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. 

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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