The Obama administration will no longer defend the constitutionality of the Defense of Marriage Act, Attorney General Eric Holder announced today.
Holder said he and President Obama had decided the law does unconstitutional and does not merit a legal defense. The decision by the president not to defend a statute passed by Congress is sure to create concern about unilateral action by an administration to abandon a statute duly passed by Congress.
One prominent attorney today questioned whether the move wasn’t an attack on the rule of law.
The Volokh Conspiracy, a legal blog, wondered if a future president might refuse to defend the individual mandate in the health reform law, leading to its invalidation.
But others say the move not to defend a law is not extraordinary.
The Defense of Marriage Act, passed in 1996, defines marriage as between a man and a woman and prohibits federal recognition of same-sex marriages. Obama himself has expressed opposition to the statute but felt obligated to defense its constitutionality.
The administration will continue to enforce the law until a court delivers a “definitive verdict against the law’s constitutionality,” Holder said.
But it’s not clear who will defend the law from challenges if the Justice Department is on the sidelines, though there have been suggestions that Congress could do it.