Optional: a president who upholds the law

The Obama administration will no longer defend in court the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman and bars federal benefits to same-sex couples, because President Obama no longer finds the act constitutional. That unusual decision gives future administrations justification to refuse to defend laws that they personally find unconstitutional.

Obama has long opposed DOMA, calling it "abhorrent" and "discriminatory," but under his administration the Justice Department has defended it as established law. The president previously said, with regard to DOMA, "We have a duty to uphold existing law." On Jan. 18, when a reporter asked whether the administration would quit defending DOMA in court, then-White House spokesman Robert Gibbs responded, "We can't declare the law unconstitutional." But Attorney General Eric Holder declared just that on behalf of the president in a letter to congressional leaders Feb. 23.

The long-term implications of Obama's decision could come back to harm some of the president's own priorities that are now law. Daniel Dreisbach, a constitutional law expert at American University, explained that courts will likely be debating the constitutionality of healthcare reform for years, and a future Republican president could decide that the law isn't constitutional and instruct the Justice Department not to defend it in court. Because so many laws have been passed recently on party-line votes, statutes could be even more vulnerable based to which party controls the White House, he said.

"The Department of Justice defends a statute today and tomorrow a new president is elected and the defense is withdrawn," Dreisbach said. "It opens the door for future presidents to make these decisions with a higher level of comfort."

The president has freedom to interpret the Constitution, which flows from his oath of office to "protect and defend the Constitution," said Dreisbach. But he said regardless of interpretation, the president is expected to defend the law of the land. "What is rather unusual is for the executive branch not to defend a statute passed by Congress and signed by the president." Congress passed DOMA in 1996 and President Clinton signed it.

"When Congress enacts laws on behalf of the American people, the American people have the right to expect them to be defended when they're challenged," said Senior Legal Counsel Austin Nimocks of the Alliance Defense Fund. "How the attorney general's constitutional duty to protect and defend the laws of the United States becomes optional is a great mystery."

Holder, in his letter, said he and Obama believe Section 3 of the DOMA law, which defines marriage as between a man and a woman, violates the equal protection clause under the Fifth Amendment of the Constitution.

"The question now becomes: Is there anyone left who can defend the constitutionality of this statute in court?" Dreisbach asked. A court would have to decide whether members of Congress, for example, have standing to defend the statute.