STEVE INSKEEP, host:
President Obama's administration has put itself on both sides of the legal debate over same-sex marriage. The administration recently abandoned legal arguments in support of the Defense of Marriage Act - or DOMA. Yet, the administration says it will continue to deny health care benefits to the same sex legal spouse of a federal court employee. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Last week, the Obama administration stirred up a tempest in the legal community when it notified Congress that it would no longer defend DOMA as constitutional. It was the first time the administration has notified Congress of a refusal to defend a statute in court, and it differed markedly from the way it dealt with the "don't ask, don't tell" law, which the administration did defend in court, but persuaded Congress to repeal.
Until last week, the administration had similarly defended DOMA, but Walter Dellinger, who served as solicitor general in the Clinton administration, contends that throwing in the towel was the right course for the administration at this point.
Mr. WALTER DELLINGER: It was going to have to argue that there's been no discrimination on the basis of sexual orientation. And that is an argument that neither the president nor the attorney general believe.
TOTENBERG: Harvard Law Professor Charles Fried, who served as solicitor general in the Reagan administration, calls the administration's rationale for switching positions, incoherent. Though Fried says in his view DOMA is unconstitutional, the administration, he says is duty-bound to defend it as long as some reasonable, though perhaps losing argument, can be made on behalf of the law.
Professor CHARLES FRIED Harvard Law School: The reasonable argument is that, in terms of tradition and in terms of the view of the majority of the people of the United States, marriage is between one man and one woman.
TOTENBERG: In notifying Congress of its decision not to legally defend DOMA, the Obama administration said it would continue to enforce the law so that Congress could defend it in court. In other words, the administration said it would, with one hand, enforce the law to preserve a live legal case. But at the same time, it would tell the courts it believes the law is unconstitutional.
Thus, in yesterdays California case, the administration said the Federal Office of Personnel Management would continue to deny health care benefits to legal same-sex spouses of federal court employees. And Last week, the administration said the IRS would refuse to recognize the marital status of an 81-year-old widow, who was legally married in 2007 to her same-sex partner of 44 years. The IRS action means that the widow owes $360,000 in taxes that would not be owed if her spouse were a man.
Some former Justice Department officials are critical of this two-track approach, contending that if a president really thinks a law is unconstitutional, he should not enforce it.
Shannen Coffin served in the Bush Justice Department and as counsel to Vice President Dick Cheney.
Mr. SHANNEN COFFIN (Former Counsel, Vice President Dick Cheney): It seems incongruous to conclude that the administration will continue to enforce a statute that they have found flatly unconstitutional.
TOTENBERG: Coffin agrees, however, that the issue of enforcement is something of a conundrum that forces the president to either take apparently contradictory positions, or usurp the power of the legislature by unilaterally refusing to enforce the law.
George Washington University Professor, Orin Kerr.
Professor ORIN KERR (George Washington University Law School): In some sense, the administration is in an impossible situation. They're going to get criticized no matter what they do, depending on what political interest is offended by their decision.
TOTENBERG: The administrations DOMA shift is unusual, but not rare. It's happened more than a dozen times since 2004 and many more times in the last 60 years.
The Ford administration, for instance, refused to defend the post-Watergate Campaign Finance Law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the Independent Counsel Law, subsequently upheld by the Supreme Court by a seven-to-one vote. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcast licenses - a law subsequently upheld by the Supreme Court by a narrow five-to-four vote.
The acting solicitor general in the last case was a fellow by the name of John Roberts, now the chief justice of the United States.
Nina Totenberg, NPR News, Washington.
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