Most commentary on the Supreme Court’s two recent decisions involving the constitutional status of same-sex marriage focuses on that aspect of the cases. However, underlying both cases is a constitutional issue which has much more far-reaching implications than the merits of legal recognition of various forms of domestic partnership. This is that critical to both cases was the decision of government officials to not defend validly and democratically enacted laws, and to resist permitting anyone else to defend them either. Although more subtle than abuses of power such as the IRS, press wiretapping and Benghazi scandals, this abuse has as a great a potential to undermine the Constitution and the rule of law as any of the others. And it could be used as easily against the progressives who are celebrating the decisions as those opposed to them.
In U. S. vs. Windsor the Court struck down part of a 1996 law called the Defense of Marriage Act (DOMA) which was passed with overwhelming bipartisan support in Congress and signed by Bill Clinton. In Hollingsworth vs. Perry, the Court let stand a far–reaching decision by a federal court in San Francisco which struck down a provision which had been added to the California state constitution by a ballot initiative in 2008 called Proposition 8 to preserve the traditional definition of marriage as a monogamous heterosexual union. In these cases, not only did both California Governor Arnold Schwarzenegger and Attorney General (and now Governor) Jerry Brown in the Prop 8 case and President Barack Obama and Attorney General Eric Holder in the DOMA case fail to defend those laws in court, but they sided with the plaintiffs in arguing that the laws were unconstitutional.
This left the laws without defenders to argue the cases vigorously, and to appeal adverse lower court decisions. In Hollingsworth, the Prop 8 case, the Court ruled that Prop 8’s proponents could not appeal anti-Prop 8 rulings by the federal district court in San Francisco and Ninth Circuit Court of Appeals. This left in place the decision by district court Judge Vaughan Walker that Prop 8 violated the “equal protection” clause of the 14th Amendment. Even the left-leaning Ninth Circuit Court of Appeals had rejected that argument (which would impose gay marriage nationwide). Yet, by dismissing the rights, or “standing,” of the Prop 8 proponents who had tried to appeal that decision, the Supreme Court left in place that most radical of decisions. The Supreme Court’s decision is even more untenable in light of the unanimous ruling by the left-leaning California supreme court that under California law the Prop 8 proponents did have the right to appeal.
In contrast, in the DOMA case the Supreme Court was able to get past the standing technicalities and rule on the substance, even though many legal experts considered the standing issue in the DOMA case to be much more problematic than in the Prop 8 case. Here, because the Obama administration had refused to properly defend the law the House of Representatives had entered on the appellate level. However, that left DOMA’s defenders on appeal arguing on a lower court record where the Obama/Holder Justice Department had only made a weak and half-hearted defense of the Defense of Marriage Act.
The California state constitution requires that its public officers take an oath to “support and defend” the California constitution (which includes Prop 8), and the United States constitution requires that the President swear to “preserve, protect and defend” the Constitution, which extends to laws validly enacted under the Constitution such as DOMA. By ignoring this abject refusal by the constitutionally responsible officeholders to fulfill their constitutional duties, the Supreme Court has condoned a frightening expansion in executive and judicial power at the expense of the power of the people and the integrity of the Constitutions of both the United States and the state of California. A President or governor who does not like a law no longer has to go through the constitutional hassles of having it repealed by the legislature. All she or he needs to do is decline to defend the law when it is challenged by her or his ideological allies, and let unelected and unaccountable judges repeal the law. Some argue that an executive does not have to defend a law which she or he feels is unconstitutional. However, the integrity of the rule of law should then require that some provision be made for the law’s proper defense.
In California there was some effort to do this by allowing Prop 8’s proponents to belatedly defend it. However, now the Supreme Court has ruled that the citizenry have no right to defend their own laws. This will completely gut the power of initiative and referendum, which many states have enacted precisely in order to create a democratic check on government officials. Now all these officials need do to thwart the referendum process is make an anemic or no defense before a friendly lower court judge, and then cite Hollingsworth to deny the people the right to appeal to higher courts.
(In the Prop 8 case, even though the proponents of the law were eventually allowed to defend it, they were never officially designated by the state, a weakness which severely undermined their ability to mount a proper defense, especially against a hostile judge who kept secret his personal interest as a partnered gay man in the outcome of the case. And, of course, the Supreme Court ruled that the proponents’ lack of official status was fatal to their right to appeal.)
In the Windsor decision, the Supreme Court further abetted executive branch gamesmanship by allowing the Obama/Holder Justice Department to appeal the decision even though the district court had decided in favor of the Obama/Holder Justice Department’s anti-DOMA position. While the Supreme Court did allow the House of Representatives to enter and appeal the decision, this was of little use because the House was not allowed to argue the case in the district court where the principal factual decisions about a case are made.
The issue was not unnoticed. In the oral arguments in March, several justices expressed concern over this aspect of the cases. Justice Kennedy noted that an executive branch decision to not defend a law results in a form of back-door repeal, a “ratchet” which favors the executive branch. Justices Sotomayor and Alioto both wondered how a law would be defended if the executive branch refuses to do it.
Instead of enabling Messrs. Brown, Obama and Holder to shirk their constitutional duties, the Supreme Court should have dismissed both gay marriage cases all the way to and including the pro-gay marriage district court decisions. Democratically and constitutionally enacted laws should not be overturned without the benefit of a strong and official defense. If government executives do not wish to do so, they should be required to officially designate another party to undertake the defense, something which did not occur in either of the gay marriage cases.
This executive abuse of power should be of concern to progressives as well as constitutional conservatives. Consider a plausible counter-factual. Suppose Mitt Romney had won the presidency in the last election but the Democrats retained control of the Senate. The Democrat Senate would have blocked an outright repeal of the Affordable Care Act. However, a Romney administration could have achieved the same result by conceding the Affordable Care Act’s unconstitutionality in the many cases against that law, using the courts to make an end run around the constitutional requirements for its repeal by Congress.
The failure of the Supreme Court to impose a positive obligation on state and federal executives to actively defend all laws in federal court challenges has now established a dangerous precedent. Legal ethics require that lawyers “zealously” represent their clients, and constitutional officials should be held to the same standard in defending the peoples’ laws. My law school federal civil procedure professor, Ruth Bader Ginsburg, taught us that a vigorous adversary process was essential to assuring the just functioning of our common law system. Justice Stephen Breyer has argued eloquently that the Supreme Court should seek in its decision-making to promote democratic governance. Requiring that the executive branch vigorously defend all laws, or formally delegate others to defend laws of which it disproves, assures a complete consideration of important issues, forestalls a dangerous increase in executive power, and shows the respect due to democratically enacted laws.