Abdication of Duty: Defense of Marriage Act (DOMA)

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.

The Presidential Oath of Office (U.S. Constitution – Article II, Section 1)

On February 23, 2011, Attorney General Eric Holder sent a memorandum to the Speaker of the House of Representatives, John A. Boehner, informing him that President Obama’s administration “will no longer defend the Defense of Marriage Act, a federal law that defines marriage as a union between a man and a woman”. I consider any decision to refuse to give full, proper and vigorous representation to defend all laws of the land in accordance to the sworn duties of office, to be an impeachable offense. This severe indictment has nothing to do with the gay rights issue. Rather, in the name of this issue, this administration has proceeded to violate an elementary principle of civics; which because it concerns a highly public issue, will likely invoke worse ramifications in the ensuing years.

However, before making the argument, a couple of necessary disclaimers are required. As noted elsewhere on this web site (The Problem of Gay Marriage), I consider it unwise for the state to have made or make any definition for marriage or to involve itself so extensively in legislative or judicial regulation of the Estate. Such involvement has always led to travesties and injustice of various sorts (Lord Hardwicke’s Marriage Act – 1753 relating to religion and age, Anti-miscegenation laws, eugenic-associated marriage laws). The benefits to the state of such laws are far outweighed by the risks to civil unrest on a matter in this day. There are guaranteed losers upon making any public definition on marriage. Either perceived violations against equality or violations against conscience will invariably suffer. And it will just add one more item to the litany of flashpoints in a culture war which will increasingly heat up in waves until its climax.

Secondly, although I might consider myself a moderate conservative, the best description of the increasingly polarized factions in the U.S. is encapsulated by The Doors. “And All the Children Are Insane” (“The End” –  1967). I would find it difficult, in good conscience, to vote for either side, even were I able. I considered the deceit of the Bush Administration concerning WMDs in Iraq, which was the purported justification to obtain public support for initiating and conducting a foolish war, to be also grounds for impeachment. Surely, if Puritanical prosecutors can beat the bushes to induce a few lies about minor scandals and abuse of power in the Clinton years, surely a whopper weave of deceit and lies such as the WMD deserves a prosecutor or two. Thus, I am an equal opportunity impeacher. And I consider the practice of de facto not forcing the law to the best of ability to be similar grounds for impeachment.

When I heard about this decision last year, the memory of the last years of the Wiemar Republic and early years of the Nazi regime came to mind. Though laws were on the books, the cops, sympathetic to right-wing and Nazi sentiments, failed to enforce the law and protect the Jewish and other minorities from thuggery as well as pick sides in riots between the Nazis and the Communists.

This issue bumped up into consciousness again last week when encountering a report concerning similar neglects of duty by Greek bureaucrats, judiciaries and cops against immigrants, minorities and political enemies without police intervention. The issue is relevant in the contemporary political setting.

For example, immigrants were first demonized by the state itself. They were interned, and their rights were cancelled in practice. Bureaucrats failed to enforce protective labour legislation. The police and the judiciary do not prosecute fascists under existing laws, which are more or less adequate, and don’t penalize racial attacks, antisemitism and spreading of hate, all trademarks of Golden Dawn.

Golden Dawn and the Rise of Fascism, The Guardian, June 19, 2012

If one faction or the other side, decides, for whatever excuse it gives itself, not to defend a duly initiated law, which in this case had acquired overwhelming support in both U.S. Congressional Houses and the executive branch; it is akin to doing to law what would occur to a charged defendant in which no lawyer would defend nor be appointed. In an already unjust judicial system, where money buys the best sophists, the dynamics of this refusal to uphold the laws of the land, on the basis of self-appointed interpretation of the law in reference to the Constitution, lends to practicable tilting of the balance of justice.

However, the great peril lies in this. It sets precedent, by which either side can effectually nullify any law that they dislike through not giving full defense of it. Certainly, the rabble rousers and the single-minded zealots within each faction may denigrate the issue of rule of law or procedural niceties of the political process, in the name of their concept of a “higher principle”. Such zealots, animated with only myopic self-interest and without principle, will not appreciate the a graver threat lies in lawlessness, even to their own long-term interests. Instigating a principle of capriciously setting aside full defense of any given law, whenever the mood strikes, soon proliferates into a habit by whichever faction acquires the Commanding Heights of sociopolitical power. Surely, the adversaries of the Obama Administration will simply retaliate when power returns to their hands, having been given full justification by precedent. And such precedents have tendency to proliferate with even more flimsier basis than those provided in this incident. The complaint by the losing liberal parties of the Weimar Republic at Hitler’s use of the anti-hate laws to suppress free expression, was legitimately cast in these liberals’ faces.

The long term consequences could include a deepening detestation of each other faction as each perceive the other as violating law and equity to pursue their own self-interests and agendas. A government of laws could hereby easily descend into a government of raw power. Free civil institutions and government will be effectually overthrown. Herein, in this most basic of civic principles, the current Obama administration shows itself to be incompetent and foolish.