I have a serious question about this.
The Obama administration decided on Tuesday to appeal a judge’s rulings that prevented the U.S. government from banning same-sex marriages, a move that could undermine support among President Barack Obama’s traditional liberal base ahead of a key election.
The Obama administration filed a notice of appeal with the U.S. District Court for the District of Massachusetts in support of the 1996 Defense of Marriage Act, or DOMA, that barred gay marriages, even though Obama had previously opposed the law.
Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.
“As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed,” said Justice Department spokeswoman Tracy Schmaler. “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”
I can’t remember any high profile case where an administration has failed to defend a congressional law all the way up to the Supreme Court. But it’s not like lower courts rule federal laws unconstitutional very often. It’s true that the administration isn’t legally obligated to fight for DOMA, but it’s not true that they could kill the statute by simply letting the lower court’s ruling stand. There is also an important precedent involved.
I am also unsure how letting the decision stand would play out. I think it would only apply in Massachusetts. As a strategic matter, it seems unwise to appeal it up to the Supreme Court because they will almost certainly overturn it. But, unless I am mistaken, letting it stand wouldn’t help anyone outside the state of Massachusetts. I think it has to be changed through statute or through gaining a majority on the Supreme Court.
Appealing the decision was obviously was not something the administration wanted to do. It wasn’t the politically smart thing to do.
