March 21, 2011
by Robert H. Bork
The utter cynicism and frivolity of the Obama administration is nowhere more evident than in Attorney General Eric Holder's announcement that he and the president have decided that the Department of Justice will no longer defend the constitutionality of the Defense of Marriage Act (DOMA). The announcement is an outrage not only because of the result it reaches, but also because of the constitutional wreckage it leaves in its wake.
That wreckage is both substantive and structural. Obama and Holder reason that the statute violates the "equal-protection component" of the Due Process Clause of the Fifth Amendment, which applies to the federal government. Holder wrote Congress: "The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. . . . Moreover, the Department has declined to defend a statute 'in cases in which it is manifest that the President has concluded that the statute is unconstitutional,' as is the case here."
The difficulty of applying "equal protection" without regard to the original understanding of the term is that there is no way to confine the clause. Since all law discriminates, all law is potentially vulnerable to equal-protection challenge. As the DOMA case reminds us, the substantive use of equal protection is especially hostile to moral legislation in the hands of this Court.
Also, the Obama-Holder position depends upon a repudiation of originalism as the preferred mode of constitutional interpretation. It is impossible to derive a right to homosexual marriage from the original understanding of either the Fourteenth Amendment or the Fifth Amendment's equal-protection component.
The Fourteenth Amendment's Equal Protection Clause was part of the design to bring the newly freed slaves into the Union on equal terms with whites. Hence, we have Brown v. Board of Education and Loving v. Virginia. The latter, which struck down Virginia's ban on interracial marriages, is often misused by courts. Opponents of California's Proposition 8 regularly cite Loving and similar cases to show the high regard in which marriage is held and hence, the argument goes, the unfairness of preventing homosexuals from marrying.
This argument, however, rests upon a willful misrepresentation of the law: After the Loving decision, the Supreme Court dismissed the appeal of a holding by the Minnesota Supreme Court concerning same-sex marriage on the grounds of a "want of substantial federal question." The Minnesota court had ruled that the state's marriage statute "does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. . . . In common sense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."
The Obama-Holder dismissal of originalism is an assertion that the interpreter of the Constitution, be it a court or a legislature or an executive-branch official, is free to attribute to the Constitution any position he favors. Situations in which executive-branch officials believe a law is unconstitutional are not unknown, but the officials have almost always handled them very differently than this president and attorney general have done.
In the 1946 case United States v. Lovett, the solicitor general attacked the constitutionality of a statute forbidding the use of federal funds to pay the salaries of three government employees. The situation differed from the DOMA abandonment in an important way, however: In singling out executive-branch officers for discipline, Congress had interfered with the structure and functions of the department and, hence, of the executive branch. In such situations, the solicitor general is necessarily an advocate for the president.
As solicitor general, I was involved in a situation similar, but not identical, to the DOMA capitulation. In 1976, the department was faced with defending a statute, the Federal Election Campaign Act, that seemed to Attorney General Edward Levi, and to me, to be clearly unconstitutional under the First Amendment as a restriction of political speech. Our solution was to delegate to the senior deputy of the solicitor general's office the defense of the statute, thus ensuring a first-rate defense. Simultaneously, Levi and I filed a friend-of-the-court brief exploring the difficulties of the statute but not taking sides in the dispute. Justice Powell subsequently expressed his appreciation for the brief, which he and others on the Court had found extremely helpful.
In this way, we both called to the Court's attention the very considerable difficulties the Constitution posed for the statute, and mounted the best defense of it that we could. It is important that the solicitor general be able to perform both tasks in appropriate cases. The Office of the Solicitor General consists of a small corps of elite lawyers who give every constitutional issue the scrutiny it requires. In the absence of that scrutiny, the defense of a major statute such as the Federal Election Campaign Act or DOMA may be inadequate, and the first case to reach the Supreme Court may set the parameters for later cases.
The problem of inadequate exploration of legal issues can occur even when the solicitor general argues the case, but it is much more to be feared when a different entity litigates — as will most likely happen in the absence of a lawyer from the executive branch to defend DOMA. States' representation, for example, is rarely up to the standard an important case deserves. When I was solicitor general (and I assume both before and since), the executive branch routinely filed a friend-of-the-court brief and asked for time share in the oral argument in state cases that might set the law in ways that would affect the federal government.
I remember vividly an occasion upon which a lawyer for the state of Nebraska defended Nebraska's transfer of prisoners from one prison to another. When questioned from the bench, the lawyer said, "We used to draw and quarter people, and we don't anymore." Justice Marshall said, "Is it Nebraska's contention that it could conceivably draw and quarter prisoners, and therefore could constitutionally do anything less to them?" There was a long silence while I waited for the attorney to brush aside the suggestion, but when I looked up he was actually thinking it over, and then he said, "That's part of my argument." We were saved by the fact that the answer was so preposterous that nobody took it seriously, but the episode did illustrate the dangers of relying upon unknown attorneys to make the case for the federal president.
If Obama and Holder find DOMA problematical, they might have adopted the solution that Levi and I did. That they did not suggests an unwillingness to have the constitutional question exposed to the light of day. Instead, they added to the growing list of misuses of the Bill of Rights and distorted the structure of our government in ways that urgently require repair. Obama and his czars have already acted to lessen the powers of the legislature that the Framers intended to create and now are usurping the function of the courts by announcing constitutional decisions by the executive branch. This aggrandizement of the executive-branch powers poses a very real threat to American liberty.
Robert H. Bork was a Distinguished Fellow of Hudson Institute. He passed away on December 19, 2012.
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