Amidst the blur of reaction and analysis of Windsor [the recent Supreme Court decision that threw out the Defense of Marriage Act (DOMA), a federal law enacted by Congress in 1996 that allows states to refuse to recognize same-sex marriages performed under the laws of other states – editor] upon its release yesterday, I didn’t hear or see any discussion of Obama’s role in setting up the posture of this case.
“Although “the President . . . instructed the Department not to defend the statute in Windsor,” he also decided “that Section 3 will continue to be enforced by the Executive Branch” and that the United States had an “interest in providing Congress a full and fair opportunity to participate in the litigation of those cases.” Id., at 191–193. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter
of the constitutional claims raised.” Id., at 192.”
By clearly delineating the roles of the branches thusly, the administration forestalled any reasonable argument the Court could have made to avoid deciding the case on its merits on the grounds that it would be undue judicial activism. The President made his position clear, and by having Congress, as the voice of the citizenry, defend the Act, the President forced the judiciary to fulfill its role.
Windsor is a powerful precedent and represents a generational step forward for civil rights in our country; it will be analyzed, discussed, and applied for years. I just want to point out the deftness of Obama’s handling of the issue. It employed a nice balance of moral persuasion with a proper understanding of the separation of powers in the Federal government, and it was done quietly, in the background. I just hope history affords Obama the credit he is due for making the Federal government work as it was intended to work.