Yes, Unconstitutional

Imagine that Congress, seeing where the courts were headed back in the day, had enacted a law that defined marriage as legal only between one man and one woman of the same race ?

The federal government as a matter of the Constitution is obligated to enforce any law Congress creates. But it is not obligated to defend in court a law it reasonably views as unconstitutional. And in this case, no one would have faulted a president for refusing to do so.

This is the kind of dilemma the administration of President Barack Obama found itself with the Defense of Marriage Act, which defines marriage as between one man and one woman. In a decision based on principle and humanity, the administration correctly announced last week that it would not defend this law.

Attorney General Eric H. Holder Jr. said the president and he concluded that classifications based on sexual orientation can be presumed to be as unconstitutional as discrimination applied to other classes, such as race and gender.

He's right.

At issue eventually is whether gay couples in the eight states that recognize same-sex marriage may be discriminated against by the federal government. Obama is not suspending this law — this is something Congress should do. He is instructing the government to stop defending the indefensible. Defending it would require employing arguments that might undercut federal arguments in other discrimination cases.

The federal government should as a general rule defend Congress' laws. The logical flip side is that there are also laws not worth defending. DOMA is one of these.

Had Congress passed that fictional law banning interracial marriage and the president refused to defend it, history would have judged Congress grievously wrong and the president courageously right.

History will render the same judgment on Obama's decision on DOMA.

REPRINTED FROM THE MILWAUKEE JOURNAL SENTINEL.

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