Obama’s DOMA Decision: Ethical?

The talk show guest was fuming. “It’s a power grab,” he said, referring to President Obama’s decision that his Justice Department would no longer defend legal attacks on the Defense of Marriage Act, because he regarded the federal ban on gay marriage unconstitutional. “Worse yet, it’s a violation of his oath to defend the law of the land!”

AHA! An ethical argument to go with the legal and political ones! Is Obama violating his oath, which would be a breach of his duties of loyalty, responsibility, honesty and integrity? Here’s the oath:

“I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”

So the oath doesn’t commit the president to faithfully execute the laws of the United States, or to support those laws. No, he is bound by his word to preserve, protect, and defend the Constitution.

I think the conclusion is inescapable that refusing to defend a law he believes violates the Constitution is consistent with the President’s oath of office. President Obama may be wrong on the law, and it may be a bad precedent. Nevertheless, it cannot be said that he is unethical.

3 thoughts on “Obama’s DOMA Decision: Ethical?

  1. Nice analysis. I hadn’t seen it this way, but I should have. federal officials, from Senators to military recruits take a similar oath:

    “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

    Some military and CIA officers who have opposed the Patriot Act and opposed torturing detainees have defended their positions by referring to the oath, pointing out that it was the Constitution, not the nation, they were sworn to defend.

  2. I think the Constitutional issue has to do more with separation of powers than the Presidential Oath of Office: it is not the job of the Executive Branch to make those decisions. We have a Judicial Branch that serves that function, and we have very different rules for how someone becomes a Supreme Court judge precisely because we do NOT want those sorts of decisions made for political reasons or in a climate where such decisions will be routinely reversed as elections change who is in power.

    If anything, the proper course would be for the Justice Department (or some other suitable arm of the Executive) to challenge the law in federal court the same way a citizen who is affected by would, or for the President to introduce a repeal bill to Congress.

    In the mean time, the President is not authorized to ignore the will of Congress. He is entitled to his opinion, but as you note: he may be wrong on the law and it is outside of his powers to unilaterally make the decision. If any POTUS has that power, then he or she is simply a king.

    And this is not really an isolated incident, either, when you consider that this follows so shortly after a federal judge struck down the Health Care law, and the Administration has essentially ignored that ruling.


    • I agree, Dwayne. It was on just such a precedent that Nixon’s “Imperial Presidency” was denounced. It’s the right of any citizen to speak out against laws he deems unjust or unconstitutional. A sacred right, in fact. It’s also Obama’s right… even while he’s sought (in my opinion) to limit those rights for others.

      But, as President, he is also the chief law enforcement officer of the land. How many federal enforcement agencies answer to him, directly or indirectly? How many DoJ prosecutors call him “boss”? And how many judges owe their cushy, lifetime jobs to him? It’s one thing to state your opinion. It’s quite another when, as a high elected official with such immense responsibilities, you evade or discredit them with either inaction or overt non-compliance. Nor is DOMA the only example of this.

      As I’ve often said, there are three methods of amending the Constitution; the constitutional one, juristic redefinition and just plain ignoring it. The widespread use of the latter two has virtually reduced the Constitution to irrelevancy. And Obama has been prominent in it.

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