The issue of homosexual marriage is not going away anytime soon…which means it will not go away as a topic for this blog, either. It is an issue that is too important to ignore, an issue on which we cannot remain silent.
First of all, I need to state that I am a firm believer in the system of government established in the United States, and despite the fact that I am not always pleased with the decisions that are made or the speed with which they are (or are not) made, I think the system generally works the way the founders designed it to work, and I think they knew what they were doing. In fact, if our elected officials were held accountable for adhering to the requirements that are in place for them, things would work even better.
On that note, despite the fact that I am not an extremist by any means and would ordinarily hesitate to call for something as drastic as the impeachment of the president, President Obama should have been impeached the moment that he announced the he was instructing the Department of Justice not to enforce the Defense of Marriage Act (DOMA). The Constitution (in Article 2, Section One, Clause Eight) requires that the president take the this oath upon being sworn in to office: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Of course, though not constitutionally required, every president has added “So help me God” at the end of the oath, following the example set by George Washington at the very first inauguration. So why should President Obama have been impeached? Because he violated his oath, and has been violating it ever since. He cannot “faithfully execute” the duties of his office if he is instructing the Justice Department to not enforce a law that was passed by Congress and signed by a previous president. Whether he likes or agrees with the law or not does not matter one bit; it is the law, and he is sworn to uphold it. Even worse, the DOJ has gone beyond not enforcing the DOMA to actively opposing it. The Congress has had to hire lawyers to defend the DOMA in court against the DOJ! Interestingly, even Steve Weinstein, EDGE Editor-in-Chief, writing on South Florida Gay News, acknowledged that the president is not upholding it responsibilities: “The House has been voting extraordinary funds to fight DOMA repeal on its own, thus making for a historic clash between a presidency that refuses to defend a law (as the Constitution mandates him to do) on the one hand; and a legislative body taking extra-legislative action by intervening in the courts.”
Now, just last Friday, the DOJ filed an amicus curiae (friend of the court) brief with the Supreme Court, urging the Court to strike down elements of the DOMA. Why should the DOMA be struck down? Because “the broad consensus in the scientific community is that, for the vast majority of people (gay and straight alike), sexual orientation is not a voluntary choice.” This statement itself is a lie, but let’s ignore that. After all, the Obama administration could have found a certain segment of the “scientific community,” the majority of which does assert this claim. (Rather like all the toothpaste commercials that claim that 4 out of 5 dentists recommend their brand, right? After all, if you line up enough of them and stick to it long enough, you could find 4 out of 5 people that would recommend or support just about anything).
It is further evidence of an increasing trend by President Obama and his administration to assert in less-than-veiled terms, however, that those who disagree with their position are, well, stupid. He has taken the same approach to his arguments for addressing climate change, too. In his State of the Union address on February 12 President Obama said that climate change is “the overwhelming judgment of science.” He used the same phrase in his second inaugural address when he said, “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science….”
Back to the DOMA, though, the Supreme Court will hear Harvard Law School professor Vicki C. Jackson argue that it does not even have the authority to hear the case United States v. Windsor since the Obama administration has chosen to stop enforcing DOMA. According to the Harvard Crimson, “Jackson will assert that because the Obama administration has chosen to no longer defend the 1996 law, agreeing with the decision made by a lower court that it is invalid, the court does not have the authority to rule on the case.” So, if the president decides not to enforce a law the Supreme Court cannot even hear cases on it? That’s ridiculous. That flies in the face of the very purpose of the checks and balances system established by our Constitution. If this line of reasoning is followed, we will be well on the way to an autocratic presidency.
Equally troubling–perhaps even more so–is that the Obama DOJ has also asserted in its amicus curiae brief that the lawfully enacted DOMA must be struck down and homosexual marriage must be both granted and protected, the will of the people be damned. Specifically, the brief argues that, in this instance, the Court must not allow the will of the people to run its course. “That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.”
The Constitution requires no such thing. President Obama and his administration are asserting that they know better than the Congress, than the people of the United States, and than the very Constitution of the United States.
Last year Senators Orrin Hatch, Saxby Chambliss, Dan Coats, Thad Cochrane, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelby and Roger Wicker filed an amicus curiae brief of their own in the case of Golinski v. Office of Personnel Management on an appeal being heard in the Ninth Circuit Court of Appeals. Their brief provides an excellent overview of the history of DOMA and the danger of seeing struck down by the Court for reasons that are not constitutional. (If you’re interested, you can read the brief here: http://www.hatch.senate.gov/public/_cache/files/d78e55fd-f3bd-459e-b424-9875aabf9ddd/Amicus%20Brief%20of%20US%20Senators%20in%20Golinski%20final.pdf).
Former attorneys general Edwin Meese III and John Ashcroft also filed an amicus brief with the court in the Golinski case, arguing that the Obama administration had seriously erred in its decision not to enforce DOMA, and that because of its unprecedented actions in failing to support the law of the land, its opinions must not be given much weight in the deciding of the case. “Due to the historical landscape addressed above, and the fifteen year history of DOJ’s defense of DOMA, the decision to change course and challenge DOMA’s constitutionality should be viewed as an extreme and unprecedented deviation from the historical norm and, as such, the persuasive weight afforded to DOJ’s brief should be less than in the typical case.”
I could go on, here, but I will stop, because this is already getting lengthy and because there is plenty of information out there already that you can read if you want to explore this subject in more detail. Bottom line, we have a President who is violating his oath of office by refusing to enforce a law that was passed by Congress and signed by a previous president, and we now have him using his DOJ to actively oppose the law in court in an effort to see the law ruled unconstitutional. We need to pray for the nine men and women on the Supreme Court. Specifically, we need to pray that they will hear the case and that they will rule that the DOMA is constitutional, and the president and the DOJ must enforce it.