The DN’s Christine Flowers Takes on DOMA, Fails Miserably

Daily News resident right-wing blogger-person Christine Flowers has an, um, interesting take on the Obama administration’s decision not to fight challenges to the constitutionality of the Defense of Marriage Act:

Let’s take this decision to its natural conclusion. Until and unless this law is found to be unconstitional, it must be enforced.  It doesn’t matter if you don’t like it, and don’t think it’s fair, and don’t agree with the overriding principle that the federal government has a right to determine just who gets to enjoy federal benefits.

It’s the law.  And until it isn’t anymore, it needs to be enforced by, um, the Executive Branch of our government.

Just because they don’t like it, and because they get called mean names in the liberal blogosphere, they are sworn to uphold the law.

After a commenter (her only one) pointed out, quite correctly that:

For a lawyer, this author has a terrible grasp of the law. Obama and the rest of the executive branch and are enforcing DOMA and will continue to do so until it is repealed by Congress or struck down by the Supreme Court. DOMA is still the law and is being enforced as such for the forseeable future.

What has changed is that Obama’s Department of Justice is no longer going to spend time and effort defending DOMA section 3 from challenges in court. Until now, they had been defending it, and they lost a pair of cases at the district level in the First Circuit. If the letter from Eric Holder is to be taken at face value, those defenses were made using arguments the justice department didn’t even believe. They will now stop betraying their own interpretation of the law and will refuse to argue to support a law that they find unconstitutional.

The lawsuits in progress will proceed, and Congress or other groups may choose to defend the law if they wish. The DOJ will no longer waste time and money defending a law it believes should be struck down and will instead focus its efforts to better defend laws that deserve to be upheld.

There is precedent for this sort of thing. Most similarly, the Republican governor of California and Democrat AG (now governor) refused to defend Prop 8 when it was challenged in federal court. Private groups stepped in to mount a defense instead and the law continues to be enforced by the very people who chose not to defend it. Although not defended by the state in court, that law continues to be enforced by the very folks who refused to defend it. …

Flowers responded with:

Just a quick note to the posters, like Icee, who have a problem grasping the fundamental principle that the Justice Department doesn’t have ‘discretion’ to defend those laws it ‘likes.’

‘Defending’ and ‘enforcing’ are essentially the same thing with respect to DOMA, because a failure to defend indicates an unwillingness to enforce (as in, if someone sues the feds for refusing to give his/her spouse social security benefits and the government refuses to defend itself in a court of law, a very savvy judge could enter a decision against the plaintiff by default…in which case, yippee! DOMA bites the dust, at least on that issue)

Icee, my friend, (or if you prefer, Mr./Ms. Icee) there is no getting around the fact that by publicly disavowing a law that was passed under a Democratic President and which has never been found to be unconstitutional (just because Obama and Holder ‘feel’ it is doesn’t make it so) this administration has stuck its finger in the eye of Americans who believe in the rule of law. [Note: This is factually wrong. See below]

Case closed.

At this point, Flowers should probably surrender her law license and quit her gig analyzing politics, because, sorry, but she’s no damn good at either. Commenter Icee is absolutely correct: There is an undeniable difference between saying, “I believe this law is unconstitutional” and “I will not enforce this law.” The Obama DOJ is under no obligation to spend tax dollars defending a case it believes it can’t (or shouldn’t) win. And if we’re to get into the politics of it, Obama said repeatedly throughout the 2008 campaign that he believed DOMA was unconstitutional, and hell if we didn’t elect the guy anyway.

However, DOMA, including Section 3, is still the law of the land. Congress has the right to defend the law in court. Other interest groups may attempt to get standing, too. But the DOJ not defending a law that it believes won’t survive a heightened scrutiny test—contra Flowers, they didn’t up and decide they don’t “like” it—because it discriminates against a minority group (true) in a manner that does nothing to advance the public good (also true) is quite a bit different than Obama ordering the IRS to begin granting marriage-related tax benefits to gay couples in Vermont. That would be illegal under current law; he hasn’t done that—even though (hey Christine, maybe you should hit up the Google once in a while) a federal judge has already ruled Section 3 unconstitutional. Yes, a gay couple could sue the SSA over benefits, and yes, the administration may not choose to defend the case. And maybe a judge would rule in their favor; but again, either house of Congress has the right the appeal on the law’s behalf. If John Boehner chooses not to do so, it’s either because a.) he doesn’t think he’d win, or b.) he thinks he’d look like a mean-spirited asshole, or both.

To sum: Christine Flowers has no idea what she’s talking about. Case closed.