Whenever the subject of state nullification of unconstitutional acts comes up, opponents invariably insist that states don’t have the power to determine the constitutionality of an act, arguing that the Supreme Court serves as the final arbiter.

Thomas Jefferson disagreed, pointing out that “as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

Pres. Obama stands but a step away from agreeing with Jefferson’s thinking.

On Wednesday, the Justice Department announced it would no longer defend the constitutionality of the Defense of Marriage Act, which defines marriage as a union between a man and a woman.


Because the President says the act is unconstitutional.

“Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law, Attorney General Eric Holder said in an announcement. “But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.”

He goes on to defend the administration’s position.

“The department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because — as here — the department does not consider every such argument to be a ‘reasonable’ one,” Holder said. “Moreover, the department has declined to defend a statute in cases, like this one, where the president has concluded that the statute is unconstitutional.”

Setting aside whether you support or oppose same sex marriage, Obama’s position makes logical sense. The Constitution does not grant Congress the authority to regulate marriage, and that power should therefore remain with the states.  (Note – Obama bases his constitutional argument on equal protection, but the same principle applies.) The President takes an oath of office swearing to defend and uphold the Constitution. That being the case, does he not have an obligation to refuse to defend an unconstitutional act?

If so, Obama made the right call in refusing to defend DOMA.

In fact, one could argue he should take it a step further and refuse to enforce the act. To simply argue it unconstitutional and declare it a violation of the rights of gay couples, but do nothing to fight the injustice  – not to mention the violation of constitutional principle – strikes me as somewhat spineless.

Does his oath not demand he nullify what is clearly an unconstitutional overreach by refusing to enforce it?  How can he allow his Justice Department to enforce an unconstitutional act as if it stands as legitimate law?

And the ultimate question: if five “Supremes “rule the law IS constitutional, does that make it so?

Mike Maharrey

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