The unreasonable majority

On February 23, United States Attorney General Eric H. Holder sent Speaker of the House John Beohner a memo informing him that, pursuant to the instructions of President Obama, the Department of Justice would no longer defend Section 3 of the Defense of Marriage Act. A regrettably familiar shotgun-style reaction ensued in which Obama was accused of violating his sacred trust, dishonoring the Constitution, and undermining basic principles of democracy.

Virginia's Constitution, like DOMA, limits State recognition of marriage to heterosexual couples, so many Virginians are understandably curious about the local repercussions of Obama's actions. The parade of potential horribles is long, but some perspective will help curb the panic and isolate legitimate areas of concern.

DOMA has two sections, which I will confusingly call "Section 2" and "Section 3." Section 2 protects the States from having to recognize same sex marriage laws of other States, which they would otherwise be required to do under the Full Faith and Credit Clause of the United States Constitution. Section 3 defines marriage as a union between one man and one woman for the purposes of federal law.

Attorney General Holder's memo makes it clear that Obama's rejection of DOMA is limited to Section 3, because Obama views it as a violation of the Equal Protection provisions of the Fifth Amendment. (You astute constitutional scholars should be objecting right now, "but the Fifth Amendment does not have an Equal Protection Clause!" And you would be right, but we pretend it does. The Supreme Court reads the Equal Protection provision of the Fourteenth Amendment into the Fifth Amendment to ensure the federal government is not held to a lesser standard of review than the States, so objection overruled.)

The memo also makes it clear that the Obama Administration is not refusing to enforce DOMA, "consistent with the Executive's obligation to take care that the laws be faithfully executed." It is merely refusing to defend the constitutionality of DOMA in court. Holder is obligated by statute to inform Congress when the Department of Justice elects to do this, so that Congress can defend its orphaned statutes if it so chooses.

So, what does this memo mean for Virginia? The short answer is "nothing." DOMA is still law and the only part of DOMA that Obama refuses to defend is the part that applies to the federal government, not the states. When the time comes, it might be better that members of Congress, who actually believe in its legitimacy, show up in court to defend DOMA rather than leaving it to the half-hearted, sophistic, duty-generated support of the Department of Justice. But short answers are necessarily myopic, and this decision symbolizes much more than a simple executive determination.

In Holder's words, "The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense." By refusing to defend DOMA, the Obama Administration is saying no reasonable argument can be made in defense of its constitutionality. It is not merely that Obama believes DOMA violates the Fifth Amendment, but he believes the violation is so patently clear that no reasonable person could think otherwise.

Obama, who is rumored to be a scholar of constitutional law, argues this despite the fact that the Supreme Court has yet to rule that traditional definitions of marriage violate Equal Protection. He argues this despite the fact that forty-one states have by democratic consensus adopted DOMA definitions. Virginia finds itself in the position of being told the majority of its citizens supported an Amendment in 2006 that has no reasonable constitutional defense.

While there may be no immediate consequences for Virginia as a result of this memo, it is definitely an assault on the dignity of local government and popular sovereignty. It is one thing for a president to disagree openly with a state decision in the context of political discourse. It is quite another thing for the Executive Branch to look down its nose at over 80% of states and declare no reasonable government could possibly support their policies.

At best, Obama's decision regarding DOMA is undemocratic. At worst, it is imprudent and dictatorial. In this nation of United States, it is important that a leader lend distinction to State existence and cease leaving their wreckage by the wayside.

Patrick Henry College graduate Holly Vradenburgh is a student at the University of Virginia School of Law.

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