The Obama Administration’s Role in Windsor (guest post)

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.

One thought on “The Obama Administration’s Role in Windsor (guest post)

  1. Jacob B Abraham

    Some readers may be unaware that the Windsor decision to which you refer is the Supreme Court decision that threw out DOMA, a federal statute which attempted to invalidate any gay marriage in the United States. I agree that the President did well to not defend the statute, although that refusal to defend ran some risk of leading to a decision by the Court that might have left this issue in the sort of limbo that the challenge to California’s anti-gay marriage law wound up in. That is to say that the Attorney General probably should have at least ordered the Solicitor General to put in an appearance for DOMA, even if only to say that the Executive branch no longer supports the legislation. But you are very right in noting that the President has elected to play an appropriately low .role in a dogfight in which, as “they” say, he does not really have a dog. The ending is so sweet a victory for civilized values that almost everyone looks great today. As John Milton said “They also served who only stood and waited.”


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