Sen. Orrin Hatch, R-Utah, is 76 years old and it’s beginning to show.
On Wednesday, President Obama directed the Department of Justice to stop defending the Defense of Marriage Act (DOMA) against lawsuits challenging its constitutionality. While the DOJ will continue to be party to any suits to represent the government’s interest, it is the opinion of the President and the DOJ that the law does not pass heightened scrutiny review.
It is important to note that the administration has not thrown out the law wholesale; the President and DOJ have an obligation to enforce the laws of the nation until they are changed or struck down in the courts. They are merely saying the government will no longer defend certain aspects of DOMA in legal challenges. Essentially, they are saying that they will no longer defend Section 3 of the law, and only Section 3.
The President and DOJ are not willfully ignoring the law. This decision is one to stop mounting a futile defense against aspects of a statute that have already been proven to be unconstitutional in other cases in many jurisdictions. Obama is also not the first to employ this strategy; Bill Clinton took the same approach with regard to a law dealing with HIV positive soldiers during his presidency. That law was later struck down as unconstitutional. So, this is not some radical approach like many conservative politicos would have you believe, and it’s not the end of DOMA in any way shape or form as the liberal politicos are cheering it to be. It’s a strategic maneuver, and one that serves the constitutional interests of many of our nation’s citizens.
Orrin Hatch thinks otherwise. Hatch’s response to the DOJ letter indicates he thinks the move was political. “Congress overwhelmingly passed the Defense of Marriage Act, a Democratic president signed it into law, and the Justice Department has a duty to defend it. It is deeply disturbing to see politics further distort the Department of Justice.”
Hatch went on to state that it’s not up to the President to decide which laws to defend, rather it should be decided by the federal courts. Wait…say what?! Did Hatch just insinuate that the matter should be up to “activist judges?” I’m assuming this will be his position until a federal judge rules agains DOMA, and then it will no longer be his position, but judicial activism instead. Oh…wait…a federal judge has already ruled against DOMA.
I think it’s time for Orrin to take his pills, have some warm milk and go back to bed.