March 01, 2011
Having his oath and eating it too
A few people have asked me what I think about the current situation with DOMA, and because it's a little complicated and it requires some issue separating, I thought it merited a post.
While I have reservations about same sex marriage because (as explained here) I don't like the invasive statism of the family law/divorce system, so I think it is a mistake to frame the issue solely as a "right," my opinion on gay marriage is utterly irrelevant to whether DOMA is constitutional.
I think DOMA is violative of federalism, so I agree with its erstwhile author Bob Barr that it is unconstitutional for that reason. IMO, the enumerated federal powers do not include either the power to define marriage or the power to tell states to ignore the full faith and credit rule whenever they dislike another state's marriage laws.
In an abrupt 180 reversal of his previous position, President Obama has decided that he no longer believes DOMA is constitutional, and he has therefore refused to defend it. Unlike Bob Barr, he does not object on the grounds of federalism, but because he believes the law is discriminatory.
A lot of people are annoyed with Obama. I got an email earlier angrily accusing Obama of violating what was called "his oath to uphold the laws of the United States."
Except that is not in his oath.
So, preserving, protecting, and defending the Constitution would come before any duty to uphold the laws.
So, while he is to take care that the laws be faithfully executed, he must first and foremost preserve, protect, and defend the Constitution. To my mind, that would mean that if Congress passed an unconstitutional law, he would be duty bound not to execute that law. Nor could he "uphold" it.
I agree with Jonah Goldberg and others that this means Obama is violating his oath of office.
David Bernstein makes a similar argument:
Either Barack Obama believes DOMA is unconstitutional or he does not. If he does, then he violates his oath of office by enforcing it.
Regardless of what side anyone is on, he cannot have it both ways.
Some constitutional scholar he has turned out to be.
posted by Eric on 03.01.11 at 03:37 PM
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