Pressure from conservative groups is growing on the Republican-led House to defend the 1996 law after President Obama ordered the Justice Department to stop defending it, saying he believes it is unconstitutional. The law defines marriage, for federal purposes, as being between a man and a woman.
Technically, federal courts are not required to allow the House to intervene, but Brian Brown, president of the National Organization for Marriage, believes that courts will do so.
"The fact that Congress asking to intervene holds a lot of weight, and I would expect that the court -- especially since there's no one now defending the law -- would allow the intervention," Brown said on ABC's "Top Line" webcast. "We've been in a lot of discussions with leadership, with members of Congress, and they're looking at the case, they're making a decision as we speak. I expect them to step in and defend the law."
It is rare for a president's administration not to defend a law, even if he personally opposes it. Many in the legal community are concerned Obama has set a bad precedent that could lead to future administrations simply choosing not to defend laws with which they disagree. Such a scenario would greatly increase the power of the executive branch. For example, if a Republican wins back the White House in 2012, he or she could decide not to defend the Obama-backed health care law. Legal scholar Orin Kerr, writing at the Volokh Conspiracy website, says such an "executive power grab" would not be good for the country.
"If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency," Kerr wrote. "... Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress's power."
The Defense of Marriage Act passed in 1996 by margins of 84-15 in the Senate and 342-67 in the House and was signed by President Clinton.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said he "was shocked" that Obama, "who purports to be a constitutional expert," would "so cavalierly dismiss and usurp the prerogatives of the judiciary."
"If anything is above his pay grade, it is whether or not DOMA is constitutional," Land said. "That's not the executive branch's responsibility. That's the judiciary branch's responsibility. I find it a flagrant disrespect for the rule of law and for our system of separation of powers. And in a president, it's both stunning and dangerous.
"I think it will do nothing but reinvigorate the movement for an amendment to the Constitution to protect marriage. Many of us have been saying all along that DOMA was an insufficient defense against having same-sex marriage rammed down our throats in states that don't want it by states that have approved it."
The Supreme Court ultimately will decide the issue, Land said.
"What may tip this in the favor of traditional marriage is the Supreme Court defending its prerogatives against an overzealous executive branch," he said.
Brown, the National Organization for Marriage president, argued that the momentum is not on the side of "gay marriage," and he pointed to the 31 states that have voted down "gay marriage" at the ballot. Legislatures in Pennsylvania, Indiana, Minnesota and North Carolina are considering constitutional amendments defining marriage in the traditional sense.
"There is this myth that's being put out -- it's nothing more than a myth -- that same-sex marriage is inevitable," Brown said. "The fact is that in states like California and states like Maine, which most recently protected marriage as the union of a man and a woman ... if people are given a free and a fair vote, people will stand up to protect marriage."
R. Albert Mohler Jr., president of Southern Baptist Theological Seminary in Louisville, Ky., said voters should listen to the words of politicians -- and watch their actions.
"The game played by many liberal politicians in general, and by Democratic politicians in particular, is to say that they are personally opposed to same-sex marriage, even as they work to remove all defenses against it," Mohler wrote on his blog. "The political game played by many conservatives, by the way, is to pose as defenders of marriage without taking any action that would draw political risk. Remember that when conservative politicians now call for a constitutional amendment to define marriage as exclusively the union of a man and a woman. Where were they when such an action would have required courage but was politically viable and clearly needed?"
Former Pennsylvania Sen. Rick Santorum -- who is considering a run for president -- said the tepid response from many Republicans has been "disappointing." Standing up for the traditional definition of marriage, he noted, is becoming less common.
"It is a reality that the media, not just the mainstream media but even quote-unquote conservative publications, like Fox -- they tend to write rather negatively about people who stand up and fight for marriage," Santorum told USA Today. "They describe it in terms of bigotry, in terms of discrimination, in terms of homophobic.
"As a result of that, people stay away from it. They don't want to be cast in that light by the media. And besides, we all have friends who are gay. I have friends who are gay. But they respect the fact that disagree with them on policy."
Michael Foust is associate editor of Baptist Press.
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