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Indefensible

Mar 17, 2014, Vol. 19, No. 26 • By TERRY EASTLAND
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It was not surprising that in 2011 the administration formally announced it would no longer defend DOMA. What “drove President Obama and me” to do that, Holder told his state counterparts, was “the strong belief that all measures that distinguish among people based on their sexual orientation must be subjected to a heightened standard of scrutiny.” Yet it’s hard to see how the procreation and childbearing argument (or others, easily identified) fails to meet even that higher standard, unless the bar is set extremely high.

In 2013, the Supreme Court struck down DOMA, but both the majority and the dissent criticized Holder for failing to defend the law. Even so, there was Holder the other day in his speech to the state AGs, holding up heightened scrutiny as the standard they should adopt—in order to declare state bans on same-sex marriage unconstitutional and thus no longer worthy of defense.

Holder’s speech invites some obvious questions: Why must laws that an attorney general disagrees with on grounds of policy nonetheless be executed and defended? Why must the standard for measuring the constitutionality of a statute be set so low and be so easy to meet? And why must arguments on behalf of a law under constitutional attack be vigorously made, regardless of whether the government believes in the arguments or not?

Holder, the justice professional, did not probe such questions in his speech. But the answer to all of them is that, through the means they identify, our legal system extends to Congress, as Drew Days, solicitor general under President Clinton, has said, “the respect to which [it] is entitled as a coordinate branch of government” and “prevents the executive branch from using litigation as a form of post-enactment veto of legislation that the current administration dislikes.”

In serving those goals, our legal system also supports the rule of law and affirms the right of self-governance, a right that recognizes we the people (the “fountain of authority,” James Madison said of us) as the primary agents of social change. Would that we had an attorney general, indeed a president, who still understood our constitutional order in those terms.

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