Georgetown Professor Speaks On Marriage Law

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MICHELE NORRIS, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

The Defense of Marriage Act became law in 1996. It's often called by its acronym: DOMA. It says that under federal law, a married couple means one man and one woman, period. Since it's federal law, it's up to the Department of Justice to defend it from challenges to its constitutionality.

Yesterday, the Obama Justice Department announced that it's not going to do that anymore. It considers the law unconstitutional and will not argue otherwise.

To find out how unusual that step is and what its likely legal consequences are, we've called upon Susan Bloch, who's a law professor at Georgetown University. Welcome to the program.

Professor SUSAN LOW BLOCH (Georgetown University): Thank you, nice to be here.

SIEGEL: And first, how rare is it for the Justice Department to say: We won't defend a federal law?

Prof. BLOCH: Well, it's not common, but on the other hand, it's not unheard of. The Department of Justice is expected to defend all federal laws unless the department believes it's unconstitutional. Typically, that is either when the law seems to infringe on the executive branch or when the department just concludes that even though it may have been constitutional in 1996, it can no longer, given the changes in the law, defend it.

SIEGEL: Are there obvious textbook examples of Justice doing this?

Prof. BLOCH: Yes. When the independent counsel statute was law and was challenged as being unconstitutional, the administration refused to defend it. In that case, the Supreme Court disagreed and upheld the law.

Another time when Congress had adopted something called a legislative veto, the administration believed that that law intruded too far into the executive branch, refused to defend it, and the Supreme Court agreed that it was unconstitutional.

SIEGEL: Well, once the Department of Justice says it's not going to defend a law, does anyone else have standing to defend it in court, or is the law as good as undefended and dead?

Prof. BLOCH: No, it is not dead. Congress presumably still wants to defend it, and if so, Congress will go get its own lawyer.

SIEGEL: And that could even be just one house of Congress, say the Republican-controlled House could decide it wants to defend the law?

Prof. BLOCH: You know, that's an interesting question that I don't think we've experienced. I have always assumed that Congress has to act together to defend its law.

SIEGEL: Considering the run of current challenges in the courts to the Defense of Marriage Act and possible future challenges, how much does this tell us the outcome of litigation? Does this pretty much tilt the game far in favor of opponents of DOMA?

Prof. BLOCH: Well, I think it makes the betting stronger on the side of unconstitutionality, but really, it is just the administration's position. And I can tell you that when DOMA gets to the Supreme Court, there'll certainly be a number of votes that will disagree with the administration.

So it's likely to be a five-four decision, and the administration's position has weight but nothing controlling.

SIEGEL: Let's say that DOMA gets to the Supreme Court. During arguments, does somebody from the solicitor general's office stand there but say don't ask me, you know, I agree with them. I'm on there on side on this one? What actually happens?

Prof. BLOCH: I think they just don't appear. But they can ask to appear on the other side. But the side defending the law will not include the Department of Justice, and the solicitor general won't be there.

SIEGEL: Will not be there.

Prof. BLOCH: Won't be on the side defending the law. Whether the solicitor general chooses to come in to watch proceedings, I guess I sort of doubt it, but it's possible.

SIEGEL: Well, Professor Bloch, thank you very much for talking with us.

Prof. BLOCH: Thank you.

SIEGEL: That's Susan Low Bloch, professor of law at Georgetown University, talking about the announcement yesterday by the Justice Department that it will no longer defend the constitutionality of a provision of the Defense of Marriage Act.

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