Categorized | News


The news throughout the news today and yesterday is that the Obama Administration is not going to defend the Defense of Marriage Act (DOMA) in the courts because they have conscientiously decided that the law is not constitutional.  Is Obama right?  Many conservative commentators have suggested he cannot refuse to defend an act of Congress:

Obama is violating his oath of office by refusing to defend DOMA. The Constitution he took a solemn and sacred oath to “preserve, protect and defend” requires him in Article II, Section 3 to “take Care that the Laws be faithfully executed.” This refusal to do his sworn duty makes him derelict in his duty, and is both inexcusable and even impeachable.

I must disagree but with a caveat:  The Administration must, in every case where DOMA is challenged, immediately state its position and immediately ask the court to appoint an appropriate person as a friend of the court or similar position to defend the law.

Refusing to defend an Act of Congress or executive branch decision has happened twice that I know of:

In 2000 in United States v. Dickenson, the issue came to the Supreme Court whether the Congress could pass a law, which it did in the 60s, purporting to overrule Miranda legislatively.  Eight Attorney Generals had refused to enforce the law (18 USC 3501) and it finally came up in the Fourth Circuit Court of Appeals by accident in violation of a standing order.  The Fourth Circuit and the Supreme Court appointed Prof. Paul Cassell to defend the law. Thankfully Miranda was upheld.

Another example is the Bob Jones University case; where BJU was in danger of losing its tax-exempt status for alleged racial discrimination.  The Reagan Administration decided not to defend the IRS decision and the learned attorney and later federal judge William T. Coleman took the IRS position by invitation of the Court.  BJU lost.

If Reagan did it, how can Obama not do it?  I can respect the President saying, I cannot defend the law conscientiously.  BUT, he cannot leave the law undefended.  The Administration must ask every court that has this case in front of it to appoint a experienced attorney to defend the law.  It  is not proper to leave the law undefended.

I want to give the maximum latitude for President Paul to say he will not defend various acts of Congress if he finds them violative of the Constitution.  Also, the “faithful execution” of the laws may require not defending certain acts of Congress.  This should not happen as a matter of course but the President can refuse to defend DOMA.  But he has to make sure it is defended adequately and zealously.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)


  1. James337 says:

    he’s not saying he won’t defend the law itself. The president will defend the law on its merits. The president, and Justice will not defend on its constitutionality.


Leave a Reply

Your email address will not be published. Required fields are marked *

CommentLuv badge

Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

Sign up for Virginia Right Once Daily Email Digest

No Spam - ever! We send a daily email with the posts of the previous day. Unsubscribe at any time.
* = required field

Follow Us Anywhere!