The constitutionality of the Defense of Marriage Act, and a related question whether gay marriage is a federal constitutional right are finally heading to conclusions in the U.S. Supreme Court. As I have indicated before in this column, I really don't give a hoot about same-sex marriage. I think it a bizarre concept, but I haven't a horse in that race.
That said, I have nonetheless viewed it a policy issue off-limits to the courts. I think gays have conflated and confused wants with constitutional rights, and judge-shopped and venue-steered their cases, breeding injurious suspicions and cynicism toward the courts. Indeed, the resultant distrust of the courts led voters in the majority of states to amend their state constitutions to put a leash on them.
In the "Prop 8" case, an appeal from a judgment invalidating California voters' decision to likewise amend their state's constitution, the issue of "standing" has vexed the case throughout. California's governor and attorney general refused to defend the suit brought by those challenging the constitutionality of Prop 8.
That left the people of California unrepresented. The refusal to defend that law was blatantly political. Faced with an argument that Prop 8 proponents lacking legal standing to defend the action, the U.S. Court of Appeals for the Ninth Circuit certified the question to the California Supreme Court, as standing was an issue of state law. The state supreme court concluded Prop 8 proponents indeed had standing under California law to defend a measure they directly enacted by referendum.
Much to my surprise, the U.S. Supreme Court called for briefing on the standing issue, and appointed independent counsel to submit it. The legal doctrine of standing has been corrupted by political forces, as evidenced by the Prop 8 case. This was laid bare on a national level by the Obama administration's refusal to defend DOMA. It is virtually unheard of for the U.S. Justice Department to refuse to defend a law passed by Congress. It was criticized as an outright sabotage.
Consider this counterfactual. Assume that the Affordable Care Act (a/k/a "Obamacare") was passed by Congress near the end of the president's first term, and Mitt Romney won the 2012 election. At that juncture, the first lawsuit challenging the constitutionality of the ACA is filed. The new president and his new Justice Department, of the "belief" that ACA is unconstitutional, refuse to defend the suit, leaving the challenging plaintiff(s) unopposed. The defendant concedes unconstitutionality.
What then? The plaintiff wins? Or, assume instead that, because there were no parties in dispute before the court, the action was dismissed for lack of a justiciable controversy required by Article III of the U.S. Constitution. The Romney administration thereafter simply refuses to enforce the ACA, effectively nullifying it. What then?
A Romney administration would have been on firmer ethical legal ground in refusing to defend Obamacare. Recall that Democrats mounted a PR campaign directed at the Supreme Court, insisting that history commands judicial deference to acts of Congress, and warning the justices to think thrice before overturning the will of the people acting through their elected representatives. Never mind that Obamacare passed by a razor-thin, totally partisan margin, with some Democratic votes bought with pork and perks.
In stark contrast, DOMA passed with overwhelming bipartisan support in both chambers of Congress. The often-overlooked and acceptable form of bribery that takes place in Congress did not occur with DOMA.
If one flips the facts such that a GOP-led Justice Department refused to defend Obamacare, Democrats would scream. Accusations of unlawful governmental collusion with the plaintiffs would fly, as would opinions by liberal law professors that the Justice Department unlawfully refused to perform its legal duty to defend acts of Congress. The editors of the New York Times would have a stroke. And most certainly, congressional Democrats would form a coalition, hire new counsel, and intervene to defend a duly enacted law. But the left now rails against the GOP for doing just that, and for "wasting" tax dollars on attorneys. (That's a laugh, Democrats concerned about spending.)