Uncertain Future For The Defense Of Marriage Act

President Obama has decided that his administration will no longer defend the Defense of Marriage Act, the federal law that defines marriage as between one man and one woman. NPR legal affairs correspondent Nina Totenberg explains the decision and its implications.

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NEAL CONAN, host:

This is TALK OF THE NATION. Im Neal Conan in Washington.

Some Republicans charge that President Obama may have committed an impeachable offense when he decided his administration would no longer defend a federal law called the Defense of Marriage Act, or DOMA. The law defines marriage as between one man and one woman.

Attorney General Eric Holder says the Justice Department will continue to enforce the law but concludes that the act is unconstitutional and will not defend against challenges in court.

Critics say it's the president's job to defend federal laws. In a few minutes, we'll take your calls.

No matter how you feel about gay marriage, is this constitutionally appropriate for the president? 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, questions and answers about pulmonary embolisms. But first, NPR legal affairs correspondent Nina Totenberg joins us here in Studio 3A. And Nina, it's always nice to have you on the program.

NINA TOTENBERG: It's always lovely to be here.

CONAN: And before we get to the DOMA controversy, I wanted to ask you about a couple of issues that are up before the courts, starting with the Supreme Court ruling yesterday, which said that free speech trumps privacy even when that speech is hurtful, specifically the military funeral protests by members of the Westboro Baptist Church that have so upset military families. Eight to one seems a pretty decisive statement in favor of free speech.

TOTENBERG: It was, but it was hardly unexpected. There is a very well-established series of rules about free speech that have been established over the last, I'd say, three-quarters - almost three-quarters of a century. And it was really hard to see, as awful as this speech was, it was really hard to see how the court was going to say, well, you could - you can impose penalties, i.e., millions of dollars in damages against somebody for voicing speech that you find odious.

Here, this group followed all the rules. They always alert the police when they're going to show up. They follow police instructions. They do not believe in civil disobedience. They just say things most people think are really awful and painful and hurtful and crazy.

But as one of the civil liberties lawyers I interviewed when I was preparing a piece about this said, the First Amendment really is aimed at fringe groups. It's not aimed at protecting speech everybody agrees about.

GROSS: It's interesting, if you say it's unexpected, the appellate division just below the Supreme Court, had already ruled in favor of free speech. Why did the court take the case then?

TOTENBERG: I think that's a really interesting question. The Supreme Court sits to resolve conflicts among and between the lower courts or to answer questions that haven't been answered before. And the lower court here reached a decision that was totally in keeping with what the decisions of the Supreme Court had been.

The Supreme Court ended up affirming that decision. And, you know, a couple of years ago, there was a case just like this. There was a statute enacted by Congress that made it a crime to publish images of animal cruelty.

And there were - it was - only one person was ever prosecuted under this law, a guy who had circulated...

CONAN: Oh, these were the fetish images of women's shoes stepping on small animals.

TOTENBERG: On small animals, but he didn't do that. His were some dog-fighting videos, which he didn't prepare, he just circulated them. So he was prosecuted and sent to prison. And the Third Circuit reversed, saying this is too broad a law. You can't just do this.

And the NRA entered the case and said: Look, if animal cruelty is a crime in images, then what about hunting videos, instructional videos even about hunting?

Well, the Supreme Court agreed by - with only one dissenter, again the same dissenter we had in yesterday's decision, Justice Alito, and that was - I think everybody thought that was pretty much a foregone conclusion. But again, the court decided it needed to enter the fray.

And since I don't have a - they don't report to me about why they did this. And it does take the votes of four justices to agree to hear a case, I don't have the answer to your question. But it is a little puzzling.

CONAN: Before we move on, I want to mention, we talked to you a bit about this case yesterday, as well, neglected to note that NPR was part of a group of media organizations who filed an amicus brief in the United States Supreme Court. That's the case of Snyder versus Westboro Baptist Church in support of the important First Amendment issues raised by the case. We should have mentioned it yesterday.

And we're talking about it again today, we mentioned it today. But I wanted to move on to another issue, and that is the case that attorneys general in various states filed against the health care law. And there was a ruling today, in Florida, that seems to - at least gives the administration a little more time.

TOTENBERG: Not much, but a little. Judge Vinson in Florida, who struck down the entire law, and it was not clear, at least to some people, whether he meant that to take effect immediately and all preparations for implementing this law should grind to a halt, or whether he meant to allow the normal period for appeal. It just wasn't clear.

So today he issued an opinion, a very irritated-sounding opinion, saying: You know, what I said was absolutely clear. I don't know how you could have understood it. I meant to strike down the whole law, but I'll give you seven days to appeal to the court of appeals, and you should expedite this and hear it quickly.

Of course, the court of appeals can do whatever it wants in terms of a time schedule. There are already two cases challenging this law that are scheduled for argument in two other appeals courts, and that have somewhat expedited schedules.

So in the last analysis, I don't think - this is a lot of muss and fuss about not much, unless, of course, the 11th Circuit decides that - I think it's the 11th Circuit that includes Florida - unless the 11th Circuit decides, well, we're not going to extend the stay.

And then the attorney general would undoubtedly appeal for a stay to the Supreme Court. And usually, courts preserve the status quo. They allow government to continue doing whatever it's doing, until they decide that what they're doing is unconstitutional.

CONAN: And they haven't been decided yet by the appellate division, or much less the Supreme Court, where everybody expects this is eventually going to end up.

There are, of course, three branches of government. Lately, it seems that the -we're going to be talking later about the executive and the judicial and the legislative branch. But there's been an argument in Congress lately, a bill submitted by two members to suggest that the Supreme Court ought to have an ethics code, this raised after two Supreme Court justices attended a conference that was sponsored by the controversial Koch brothers, sponsors of conservative causes, and they should have recused themselves, then, in the Taxpayers United case.

TOTENBERG: Well, first of all, it's a stretch to say that because the Koch brothers give money to campaigns or fund independent campaigns, that justices or judges are somehow prevented from ever going to an event sponsored by the Koch brothers.

In this case, Justices Scalia and Thomas spoke at Federalist Society meetings that were funded, entirely or in part, by the Koch brothers. And I'm not at all sure that the justices knew that.

But I'm not sure what difference it would have made. Judges speak all the time at Federalist Society meetings. Justice Scalia did not go to the meeting that was sponsored openly by the Koch brothers; Justice Thomas did a drop-by.

I suspect this has as much to do, in fact, more to do, with Justice Thomas' -the role that his wife has played in politics lately, where she's so overtly and vigorously identified herself with the Tea Party movement, that she step down from a leadership position in the organization that she helped to found, online, associated itself with the Tea Party movement.

But under the canons of judicial ethics, spouses are separate. Judges don't have to recuse themselves just because a spouse has a view. You only have to recuse yourself if the spouse is somehow involved in a particular case or has espoused a view about that case - not even the issue, but that case. And that didn't happen here.

So the Supreme Court justices generally try to follow the canons of judicial ethics. But they are, in one respect, unlike other judges. There's nobody to replace them.

So if somebody says I'm recused from this case, that means there are eight justices, and there could well be a...

CONAN: Four-four.

TOTENBERG: ...four-four tie.

CONAN: And that raises the issue, again, of the former solicitor general, Elena Kagan, who sits on the court now, of course. And there were questions about -when she took her seat, about how many cases she was going to recuse herself from. How many has it turned out to be?

TOTENBERG: Oh, I'm not even sure. I think it's somewhere between 25 and 30. Maybe it's over 30. But it's over. She's now sitting in almost everything. Those were all cases that just were in the pipeline when she was still solicitor general.

And if you sign one piece of paper, it doesn't matter that you really didn't have anything to do with it. If you even signed a piece of paper that says the government will not take a position in this case, you have taken an action. And by taking that action, you can't sit in the case, according to the ethical rules. And she's followed them.

CONAN: So - but that period is now over, and she'll be able to, as far as we know, anyway - I guess the health care decision would be - might she be - have to recuse herself on that?

TOTENBERG: No, she was asked about that at her confirmation hearing, and although some conservatives have tried to sort of gin-up the notion that she would have to recuse herself, and I think some conservative has filed a lawsuit demanding papers from her period as solicitor general, she said at her confirmation hearing, very clearly, that she'd had nothing to do with this case or the legislation.

It wouldn't be her job to have anything to do with the legislation, so - and it was early for - she was no longer solicitor general by the time, I think, the bill passed. So she said at her confirmation hearing, she'd had nothing to do with it.

CONAN: Nina Totenberg, NPR legal affairs correspondent, with us here in Studio 3A. When we come back, we're going to focus on DOMA, the Defense of Marriage Act. The attorney general says the Justice Department has concluded the act is unconstitutional and will not defend it in court. Some Republicans say that is outrageous, and in fact, they may hire their own attorney to argue the case in favor of the Defense of Marriage Act in court.

Is this an appropriate action for the president to take? 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION from NPR News. Im Neal Conan in Washington.

The Defense of Marriage Act signed into law by President Clinton bans federal recognition of same-sex marriages, but President Obama has directed the Justice Department not to defend the law anymore. Spokesman Jay Carney says the president's order comes, in part, because of doubts about its constitutionality and his personal opposition to an act the president describes as unnecessary and unfair.

Last night, the Speaker of the House John Boehner promised to intervene, possibly before the week is out.

Representative John Boehner (Republican, Ohio): DOMA is the law of the land. It passed overwhelmingly, both the House and the Senate. And I think it's outrageous for the president to say: Well, we're not going to enforce it. It's the law of the land. It's the job of the Justice Department to defend the work of our government. And I just think it's outrageous.

CONAN: John Boehner spoke last night with Fox New Channel's Greta Van Susteren. No matter how you feel about gay marriage, is this an appropriate action for the president to take? Give us a call, 800-989-8255. You can also send us an email, talk@npr.org. And you can join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Nina Totenberg, NPR legal affairs correspondent, is our guest, and Nina, I guess we have to begin, Speaker Boehner misspoke. The attorney general did not say he wouldn't enforce the law. He said he wouldn't defend it in court.

TOTENBERG: That's right, and the Justice Department makes a big deal out of that difference. And it's a hard to thing to explain, and I have to admit that I didn't completely understand it myself, initially, because they seem contradictory.

But in order to enable a case to go forward and for there to be a constitutional test, the administration has to enforce the law. If it just caves and says it's not enforcing it, then nobody's there to say: Excuse me, you're doing something bad to me, I want - you're violating my constitutional rights.

There is no, what they call, a case for controversy. So the Justice Department is saying we will enforce it, but we're not going to defend it.

You know, I have to say here, there are some occasions in which, when you cover a story, you actually learn something you didn't know. So let me take you through where I was in this - when I started out on this and sort of the things I learned.

It is absolutely true that the Justice Department is supposed to defend a law as long as there can be a reasonable, legitimate argument made on behalf of that law and as long as the law does not, in the view of the Justice Department and the president, impinge on the president's executive powers.

Most of the cases where the Justice Department has refused to defend a law, involve what the department views and the president views as a violation of his executive powers. But there are plenty that don't.

So, sometime in the last decade or so, Congress passed a statute that said every time you don't defend a law, you've got to notify us. So there have been 13 occasions like that since 2004.

CONAN: Really?

TOTENBERG: And some of them are big, and some of them are little. So the little one - the little one is Congress passed a law that said if you take our money for mass transit, you can't have advertisements in your trains that advocate legalization of marijuana.

And the government said: We can't defend that. There is no legitimate argument to defend that. It was during the Bush administration. Paul Clement, the solicitor general, notified Congress. They did nothing. They just sort of said okay.

And the case eventually died because they lost - in the early rounds, the government had lost the argument, and it never appealed, and that was that.

There have been some very big cases over time. In fact, one of the group of cases that was the five school desegregation cases in Brown versus The Board involve the District of Columbia, and the Truman administration declined to defend school segregation in the federal government, which was technically the district of Columbia.

Later on, the Truman, Eisenhower and Kennedy administrations declined to defend laws, federal laws, that allowed for "separate but equal," quote-unquote, hospitals, hospital facilities that were supported by federal dollars, and in some cases, schools.

More recently, the Reagan administration refused to defend the independent counsel law. The - I don't remember whether it was - which administration refused to defend the legislative veto law that allowed one house to veto regulations. I'm blanking on some others, but there have been some very, very big cases.

CONAN: Unusual but not unprecedented.

TOTENBERG: Yes, I would say unusual but not rare.

CONAN: And so this is a case where the Congress may well decide, and we'll find out tomorrow, and Majority Leader Eric Cantor apparently says it will be tomorrow that they will decide to hire their own attorney to defend the law when it comes through the courts. Is that unusual?

TOTENBERG: If they care enough, that's what they're supposed to do. That's why this statute was passed, to have the executive branch notify the legislative branch so that the legislative branch would have time to hire a lawyer if necessary and defend the law.

Now, that has a lot of dangers to it. I mean, every solicitor general who is confirmed by Congress is asked: Will you defend the laws even if you don't agree with them? And the answer is always the same: Yes, as long as there's a legitimate that can be made, and it doesn't violate the president's powers.

The question here is whether there's a legitimate argument that can be made. And I think most people I've talked to think there is a legitimate argument that can be made. It's probably a losing argument, but that doesn't mean it can't be made and that it's a crazy, cuckoo argument.

It's, you know, the argument is that the majority of people in this country want to recognize only, for the purposes of federal benefits, because that's what we're talking about here, only marriage between one man and one woman so that you don't get the benefit in taxes, for example.

The case that came to the - that we're talking about here was brought by an 81-year-old woman who'd had the same partner, female partner, for 44 years. They get married a few years ago. Her partner dies. And she has to pay $360,000 in taxes that she wouldn't have to pay if the government recognized her marriage just as it would if she were married to a man.

So, you know, that - under the equal protection of the law, that looks like a case...

CONAN: A winning case.

TOTENBERG: A winning case, but that doesn't mean you can't make an argument, and one does have to say that this does look like the president decided, for political reasons, to make this decision versus some others.

CONAN: We want to get some callers in on the conversation, 800-989-8255. Email talk@npr.org. Matt's(ph) on the line from Clarkesville in Tennessee.

MATT (Caller): Hello.

CONAN: Hi, Matt, you're on the air. Go ahead, please.

MATT: Yeah, I think it's wrong for the president to - or the executive branch to set a verbal precedent by picking and choosing the law that they find not in line with the ideals, you know, with their ideals. If you do that, you're usurping the authority of the judicial branch and, you know, really removing the system of checks and balances.

CONAN: I think it was former Senator Rick Santorum, Nina, who called the president's actions in this - he made himself into a one-man Supreme Court here.

MATT: Yes, sir. That's what I heard. That's exactly what I heard when I heard -saw his video clip on the news the other day.

TOTENBERG: Well, as I said, there have been a significant number of other times when presidents have done the same thing. I just remembered another. The Bush I administration refused to defend an affirmative action program enacted by Congress for the award of broadcast licenses.

In the end, actually, the court upheld that act, five to four. So obviously, there was a legitimate argument that could be made, and one has to assume that this was, again, sort of a political reason.

But as I said, it's unusual but not rare.

MATT: It needs to be settled in court, not just as the executive branch making a statement...

TOTENBERG: Well, that's why they're enforcing the law, so that it can be settled in court. That's why they notified Congress, so that Congress could, in fact, defend the law in court, and that's why the administration - and there's a long tradition of this, this isn't the first administration to do this.

It says: Okay, we're going to enforce the law so that it can go to the Supreme Court, but we're not going to defend the law.

CONAN: When it gets there.

MATT: This is the first administration that the president has verbally come forth, outright, not just as an action that his administration did, but verbally, outright, you know, made that statement.

TOTENBERG: I don't think that's right, actually. I think President Reagan must have verbally made the decision not to defend the independent counsel law.

MATT: Did he do it on a public forum, in front of the news cameras?

TOTENBERG: So it would be better if you did this covertly?

MATT: It's not a - they do things covertly all the time, but by doing that, the president has really inserted himself where he doesn't need to be inserted. He can make that case and take it to court, but it needs to be settled in court and not settled on the podium, as a statement.

TOTENBERG: But he's not settling it. He's saying what his view is, and that the court will decide.

MATT: That's right. Well, there's a lot of people that disagree with the current - there's a freedom of speech law that was - it was in that, you know, that was upheld. And I understand that, and I agree with their decision. There's a lot of people who didn't like that and that - what would you like the next administration to get up on the podium and declare that not law.

TOTENBERG: Well, I think...

MATT: You know, this is the road we're going down. If you've got one person (unintelligible)...

CONAN: Matt, he didn't declare it wasn't law. He said he believes that part of the law is unconstitutional and will not defend it when it comes up before the Supreme Court. The solicitor general will not defend the law. They will continue to enforce the law in the meantime, until it's decided by the court.

MATT: From what I understood, they chose not to defend nor did they choose to make it against the law either.

TOTENBERG: No. That's wrong.

MATT: (Unintelligible).

TOTENBERG: That's absolutely - Matthew, I'm sorry. That's just wrong. They specifically put out - Attorney General Holder's letter to the Congress specifically says that the government, the executive branch, will continue to enforce the law so that Congress may, if it wishes, appoint somebody to defend its law in court, and so that the court can eventually decide this issue.

MATT: So what you're saying it's at a stay?

CONAN: No.

TOTENBERG: No.

CONAN: The law will continue to be enforced until the court rules.

MATT: That's not what I understood.

CONAN: Well...

MATT: Either which way, if we want to continue going on this road, is the chief executive of the United States chooses laws that he finds support his ideals, you know, on either side, it doesn't matter.

CONAN: All right, we get your point.

MATT: (Unintelligible) stop.

CONAN: Thank you.

MATT: You know...

CONAN: Matt, we want to give somebody else a chance, okay?

MATT: Thank you very much.

CONAN: Okay. Appreciate your comment. Now, let's see if we go next to - this is Lauren(ph). Lauren with us from Birmingham.

LAUREN (Caller): Yes. Hi, how are you?

CONAN: Good. Thanks.

LAUREN: So my opinion is that it is entirely appropriate for the president not to choose to defend this law because that's why we have different branches of government. So that if one branch does something that is, in my opinion, wrong, such as pass an act to defend marriage and their - when a law is passed that violates the civil rights of someone, it is the president's duty as executive branch to, you know, he doesn't have to enforce things just because they're law. If there were a law passed saying that, say, black children and white children can't go to the same school, he's not required to enforce that.

CONAN: Nina, is that right?

LAUREN: (Unintelligible) different branch of the government.

TOTENBERG: I think he would be required to enforce that until the court...

LAUREN: Well, he said...

TOTENBERG: ...until the courts tell him he can't.

CONAN: Well, you get a situation like the attorney general, Eric Holder, at the beginning of this administration said in states that have medical marijuana laws, we're not going to enforce the federal law on marijuana.

TOTENBERG: But he said...

LAUREN: Right.

TOTENBERG: He said actually - that's not what he said. He said...

LAUREN: Well, no...

TOTENBERG: ...I'm not going to use my resources that way.

LAUREN: (Unintelligible) in jail. When the alternative is putting people in jail for something that is not a serious crime, then I think it's the president's prerogative whether or not to, you know, enforce this law, to send National Guard troops to defend (unintelligible).

TOTENBERG: It's a very interesting question because...

LAUREN: That must be what the law is about. The reason we have an executive branch of government is that so that there is one person who can make their views known and to choose whether or not (unintelligible).

CONAN: Well, if it's a law, a president signed it, so...

TOTENBERG: Yeah.

CONAN: ...there's a problem there. The president, the executive (unintelligible).

LAUREN: This president signed it, not (unintelligible) president.

CONAN: Yeah. But (unintelligible).

TOTENBERG: Lots of presidents signed - make signing statements saying I'm signing this law because I think it's overall a good law, but I think that parts of it are unconstitutional. And you saw that with President Bush, for example, when the anti-torture law was passed, he said certain parts of it he wasn't going to enforce.

CONAN: We're talking with NPR legal affairs correspondent Nina Totenberg about DOMA, the Defense of Marriage Act, and the controversy that's spread up around it. You're listening to TALK OF THE NATION from NPR News.

And let's go next to - this is David. David with us from South Webster in Ohio.

DAVID (Caller): How are you doing there? Thanks for taking my call.

CONAN: Sure.

DAVID: She just mentioned my point was how is this (unintelligible) different from an executive signing statement which became so popular with the last administration?

TOTENBERG: Well, executive signing statements are - I won't say they're not worth the paper they're written on because they're worth something but...

CONAN: There's an autograph on there.

TOTENBERG: ...at least so far, the Supreme Court has not recognized executive signing statements as having any particular import in interpreting a law. But a president can say what a president can and presidents have done is say, Congress, there's parts of this that steps on my authority as the president of the United States, and I'm just not going to follow it. So - and it leads to situations where there often is no case to challenge the president. The difference between that and what the president has done here is he's ensure that there will be a challenge. He's just not going to defend the law.

CONAN: David...

DAVID: I think - and I agree, but a couple of callers will go the guy was saying about public statements and getting into a fray, it's that sort of - an executive signing statement is sort of a preemptive strike that I don't like this whereas this is I don't like it but I'm going to continue to enforce it. I'm following the law, but I'm not going to put in the effort to defending it.

CONAN: All right...

DAVID: It seems like a less of a (technical difficulty).

CONAN: David, thanks very much.

Here's an email from Barbara in Durand, Illinois. I think if the president assumes the power to effectively declare a law unconstitutional, then it places the administrative branch, the executive branch, above and beyond the Congress at the same time usurps the power of the courts. The potential for abuse of power is pretty scary.

And I think that's what a lot of people are worried about, Nina?

TOTENBERG: But that's why he said he's enforcing it.

(Soundbite of laughter)

TOTENBERG: I mean, we're going round and round here a bit, folks, but he has not said that he wouldn't enforce it. He says as long as it's the law and as long as the Supreme Court has not struck it down, he will enforce it, but he will not defend it in court. Somebody else is going to have to defend it in court.

Twice this term in the Supreme Court, the government or some government has said, look, we were wrong. We're not going to defend some action that we took at an earlier stage. And the court then appointed somebody to represent the point of view that wasn't there.

Of course, in the end, of course, that person lost both times. But they say, you know, we want to make sure that it is defended, but you have to have an enforcement in order for it to get defended.

CONAN: And tomorrow, the House of Representatives is expected to name a special counsel who will act on their behalf to defend the law when it gets to the court.

Nina Totenberg, thanks very much for your time today.

Up next, Serena Williams recently received treatment for a pulmonary embolism. That's not a health care reserve for top athletes. Vascular surgeon Sean O'Donnell will join us. Questions and answers about pulmonary embolism. Stay with us for that. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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