Conservative and Republican lawmakers expressed outrage Wednesday at the failure of the Obama administration and California state officials to defend duly passed laws on gay marriage, which contributed to their defeat earlier in the day at the Supreme Court.
Social conservatives vowed that the fight over marriage will continue — one announced a long-shot effort at a U.S. constitutional amendment — despite Wednesday’s two decisions, one of which struck down part of the federal Defense of Marriage Act but stopped short of declaring traditional-marriage definitions unconstitutional.
House Speaker John A. Boehner, Ohio Republican, noted that his chamber had to hire attorneys to defend DOMA after the Obama administration took the unusual step of refusing to defend the law, which was signed in 1996 by President Clinton.
“The House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally,” Mr. Boehner said in a statement. “While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances. A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman.”
The same refusal by the executive branch to defend traditional-marriage law was at the heart of the court’s second ruling. In that decision, the high court said the citizens’ group behind California’s Proposition 8 had no standing to defend the law against a legal challenge after the governor and attorney general declined to do so.
Proposition 8 was approved by 52 percent of California voters in 2008. Ryan T. Anderson, senior fellow at the Heritage Foundation, called it “scandalous that the governor and attorney general refused to perform their duty.”
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“That abdication of their constitutional responsibility should not have prevented these laws from having a vigorous defense in court. This sets a disturbing precedent and distorts the balance of powers between the legislative, executive, and judicial branches of government,” said Mr. Anderson. “It would allow the executive branch to effectively veto any duly enacted law simply by refusing to defend it against a constitutional challenge.”
Proponents of constitutional government worry that the decision sets a precedent that could effectively nullify the power of the citizen initiative as well as hobble the legislative branch.
“The Court’s decision allows the executive branch to effectively veto any duly enacted law, simply by refusing to defend it against a constitutional challenge,” said Tony Perkins, president of the conservative Family Research Council. “Ironically, by refusing to defend the law, California’s executive branch has also denied the nation any definitive ruling on the constitutionality of defining marriage as the union of one man and one woman.”
Brian Brown, executive director of the National Organization for Marriage, said the decision leaves a “stench” by allowing “corrupt politicians and judges to betray the voters.”
He referred to now-retired District Court Judge Vaughn Walker of Northern California, who was involved in an undisclosed same-sex relationship at the time of his ruling invalidating Proposition 8.
“The Supreme Court’s holding that proponents of an initiative had no legal right to appeal ignores California law and rewards corrupt politicians for abandoning their duty to defend traditional marriage laws,” Mr. Brown said in a statement. “It’s imperative that Congress continue to preserve the right of states to protect true marriage and refuse to recognize faux marriages performed in other states or countries.”
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Referring to the first decision on the federal DOMA, Mr. Anderson said it was “absurd for the court to suggest that Congress does not have the power to define the meaning of words in statutes that Congress itself has enacted.”
“DOMA imposes no uniform definition of marriage upon the individual states, and the states should not be able to impose varying definitions of marriage upon the federal government,” said Mr. Anderson. “This is a serious loss for federalism and democratic self-government. We must work to reverse it and to defend the rights of all Americans to make marriage policy.”
Rep. Tim Huelskamp, Kansas Republican, also vowed a continuing fight over the issue, saying he would reintroduce a federal constitutional amendment, even though such measures never passed Capitol Hill even when vast popular majorities and most mainstream Democratic politicians opposed gay marriage.
“This radical usurpation of legislative and popular authority will not end the debate over marriage in this country,” Mr. Huelskamp said in a statement. “Congress clearly must respond to these bad decisions, and as a result, I plan to introduce the Federal Marriage Amendment (FMA) to amend the United States Constitution to define marriage as the union of one man and one woman.”
The silver lining for conservatives was that the high court left intact the DOMA measures now on the books in 30 states by stopping short of declaring such definitions unconstitutional.
“The only other saving grace of the Supreme Court’s decision today is that they refused to go along with the urgings of [attorneys] Ted Olsen and David Boies to find a constitutional right to same-sex marriage,” Mr. Brown said.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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