With the President single-handedly deciding how the U.S. Supreme Court should rule on the federal Defense of Marriage Act, who needs the expense of that Court anymore? The President can just serve as the supreme judge for our country. After all, it’s just one more usurpation of power by a President with a growing list of usurpations.
President Obama’s decision to instruct the Justice Department not to defend the federal Defense of Marriage Act is an insult to the majority of the American people. But that is not the worst of it.
President Obama, in saying that the government couldn’t justify keeping marriage between one man and one woman, insulted a majority of the citizens of this great nation. To date, a majority of the citizens in every state where they have been given a chance to vote to keep marriage between one man and one woman has done so. Apparently the majority just didn’t understand the concept of marriage as well as our President.
But, saying he understands the meaning of marriage better than a majority of Americans may not be the most significant thing about his decision. The President said that in the case at hand the Second Circuit Court of Appeals had never determined what the standard of review should be. This, in layman’s terms, is sort of like the burden of proof you’ve heard about on television shows.
Generally courts give deference to legislative determinations and apply a “rational basis” standard for determining whether a law is constitutional. In other words, if there is any rational basis upon which the law could be justified, it will be upheld. But when dealing with certain rights or certain classes of people, notably race, the court will apply a higher standard of review—strict scrutiny. Virtually no law is ever upheld if strict scrutiny is applied.
So what did the President do that was so bad? Well, even though other Circuit courts have held that DOMA should be judged on a rational basis standard, the President was unwilling to advocate that the Second Circuit should follow the standard of review applied by the other Circuit Courts. No, this President said that the Second Circuit should follow a higher standard of review. “Heightened review” is the standard he has assumed the U.S. Supreme Court will use when the case finally reaches that Court. The President’s decision not to defend DOMA was, in Attorney General Holder’s words, “based … on [the President’s] conclusion that classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”
So, the President’s first dereliction of duty was not to argue for a rational basis standard of review, the normal standard of review that is presumptively applied until a higher Court, in this case, the Supreme Court, says otherwise.
But the most glaring and serious dereliction of duty was the President assuming a judicial standard of review that the Supreme Court has never applied to marriage itself or to laws related to sexual orientation. What makes this assumption the height of arrogance is that the U.S. Supreme Court has twice ruled on cases involving homosexual conduct, and in neither instance did the Court say that homosexuality was a “protected class” of people who need the protection of “heightened scrutiny.” In essence, he made a decision about a standard of review that is within the province of the Supreme Court, not the President.
But with this assumption the President has now essentially said that, going forward, his administration will argue that any statute or rule or regulation that has an adverse impact on those who engage in homosexual conduct should be subject to a higher standard of review. So Congress and the states better understand that any time President Obama’s Justice Department has to defend any statute touching on homosexuality, he is liable to instruct them not to defend it either.
So, having decided what the Supreme Court should do, who needs the expense of that Court anymore? The President can just serve as the supreme judge for our country. After all, it’s just one more usurpation of power by a President with a growing list of usurpations.