Evolutionary law

President Obama has said his view of same-sex marriage is "evolving." Apparently he thinks that the law should be based on a kind of Darwinian jurisprudence that allows it to "evolve" and become whatever the ruling politicians at a given moment say it is (or isn't).

How else to explain the decision by the president and his attorney general, Eric Holder, not to defend the Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996? The Senate vote was 85-14; the vote in the House was 342-67, an indication of overwhelming public support to keep marriage for opposite-sex couples.

Let's leave aside for the moment any moral, religious, historical, or cultural reasons for maintaining the legal status quo on marriage, which has precedent dating to biblical times. The president and his attorney general have concluded that because DOMA is being challenged before the 2nd U.S. Circuit Court of Appeals, which they say "has no established or binding standard for how laws concerning sexual orientation should be treated"-they will circumvent or overrule judicial authority and decide the matter for themselves. This "we are the law" thinking is what we oppose in Middle East dictators.

Holder contends that because of past "discrimination" against gays, the 2nd Circuit will, or should, apply a more "rigorous standard" to such cases and when they do, DOMA will be found unconstitutional.

Doesn't this sound strangely like Richard Nixon's approach to the law? It was Nixon who told David Frost in 1977, "When the president does it, that means that it is not illegal." So when the president and his attorney general refuse to defend a law they have taken an oath to uphold, isn't that the other side of the same coin? Imagine the reaction from the left had George W. Bush announced his administration would no longer defend Roe v. Wade because he thought it unconstitutional and it would eventually be overturned by the Supreme Court.

Former Speaker Newt Gingrich in an interview with Newsmax.TV on Friday said he thought the Obama-Holder decision not to defend DOMA in the courts might be an impeachable offense and that the House may "zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job." He later softened his stance on the issue of impeachment, saying instead in a statement to reporters that, though impeachment is clearly not an appropriate action, "Congress has every responsibility to demand President Obama live up to his constitutional obligations."

The president and attorney general believe there are no "reasonable" arguments in favor of retaining DOMA. Constitutional attorney John Whitehead disagrees. Whitehead tells me he thinks the Obama-Holder tactic is "an attempt to provide cover for the president's decision to achieve a repeal of DOMA through the courts as opposed to an even-handed evaluation of the strengths of the legal arguments."

Whitehead notes that Holder has acknowledged a binding circuit court precedent that holds that "classifications based on sexual orientation are subject to 'rational basis' scrutiny." Under such scrutiny, Whitehead says, "a legislative classification based on sexual orientation would be upheld if there is any conceivable basis to support the distinction; a court is not to judge the wisdom, fairness, or logic of the legislative choice."

Whitehead adds, "Because rational basis scrutiny is extremely deferential to the decision of the legislature, the determination that it applies to a particular classification basis is usually outcome determinative; where rational basis scrutiny applies, that equal protection challenge is almost always denied."

That is why President Obama and Attorney General Holder are wrong to pre-judge the outcome of this case in the courts, not to mention their rejection of congressional authority. Isn't this ultimately about the separation of powers?

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