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Megyn Kelly Offers Blatant Falsehoods About DOMA

February 24, 2011 10:47 am ET

On Fox News' America Live, Megyn Kelly criticized President Obama's decision to no longer defend the constitutionality of a portion of the Defense of Marriage Act (DOMA) as radical and and possibly unconstitutional. Kelly hosted the National Organization of Marriage's Maggie Gallagher and conservative commentator Monica Crowley to advance numerous demonstrable falsehoods about the DOJ's decision.

Kelly Falsely Accuses Obama Of Refusing To Enforce DOMA

From the February 23 edition of Fox News' America Live:

KELLY: The Obama Administration has just announced that it will no longer defend the Defense of Marriage Act in court. They call it DOMA. President Clinton signed this thing. It allows states to refuse to recognize same-sex unions from other states. It has been in place for more than a decade and the U.S. Attorney General Eric Holder has just announced that President Obama does not believe the law is constitutional and neither does Eric Holder. They're no longer going to be enforcing this federal law that's on the books, passed by Congress, signed by President Clinton and still very much a law. [America Live, 2/23/11]

FACT: Both Obama And The DoJ Have Pledged To Continue Enforcing DOMA

Holder Emphasized Commitment To Enforcing The Law, Just Not Defending Its Constitutionality. Holder's statement acknowledged that, although the administration will not provide a legal defense of Section 3 in court, the president will continue to enforce the law:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute inWindsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut.   I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.   To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality.   This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised. [Department of Justice, Letter to Congressional Leadership, 2/23/2011, emphasis added]  

Obama Instructed Holder To Continue Enforcing Section 3. Jake Tapper, ABC News Senior White House Correspondent, noted that, until Congress repeals Section 3 or a court renders the section unconstitutional, DOMA will continue to be enforced:

President Obama told Holder that the Executive Branch of the government will continue to enforce Section 3 "consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality.  This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised." [ABC News, 2/23/11]

Holder Cited Legal Basis For Choosing Not To Defend Unconstitutional Legislation In Court. In his letter to Congressional leadership, Attorney General Holder clearly cites the basis upon which the government can choose not to defend legislation when it is unconstitutional or no "reasonable" argument exists to defend it:

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.  However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one.   "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute."  Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).  This is the rare case where the proper course is to forgo the defense of this statute.   Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here.   Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).  [Department of Justice, Letter to Congressional Leadership, 2/23/2011]

Kelly, Gallagher, And Crowley Accuse The Administration Of Violating The Constitution

Kelly Suggests DOJ Isn't Doing Their "Job." During the segment with Gallagher, Kelly commented: "The Department of Justice, however you feel about this law, whether you like this law or you don't like this law, the Department of Justice's job is to defend the laws that are on the books. And it is now saying that pursuant to President Obama's feeling that this law is unconstitutional, and Eric Holder says he agrees, they're just not going to do it. So what happens now?" [America Live, 2/23/11]

Gallagher Accuses Administration Of Avoiding Constitution. Gallagher commented: "This is an end run really around our normal constitutional processes and we're going to be seeing a lot more of this by President Obama now that he faces a Republican dominated Congress." [America Live, 2/23/11]

Monica Crowley: "To Me That Is A Form Of Dictatorship. That Is Mubarak Obama." In a later segment, Monica Crowley commented: "We are a nation of laws, not of men. We are governed by the rule of law. And what the Constitution says is that the President of the United States doesn't get to decide which laws he likes and which ones he's gonna enforce. He is the Chief Executive. The law is on the books, the Defense of Marriage Act. It is his responsibility under the Constitution to enforce that law. Not just to decide 'well I don't like that law so I'm not going to enforce it.' To me that is a form of dictatorship. That is Mubarak Obama. You can't just pick and choose which law you're gonna enforce when you're president of the United States or the Attorney General." [America Live, 2/23/11]

FACT: The President May Constitutionally Choose Not To Enforce DOMA

A 1994 DoJ Memorandum Clarifies The President's Authority To Not Execute Unconstitutional Statutes. A 1994 memorandum issued by the Department of Justice cites numerous Supreme Court decisions establishing the legal basis for the Executive Branch to not enforce a statute they view as unconstitutional:

I have reflected further on the difficult questions surrounding a President's decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

        First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).

        Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).

        While the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable, it does not offer sufficient guidance as to the appropriate course in specific circumstances. [Department of Justice Memorandum, 11/2/94]

Legal Expert Saikrishna Prakash: The Constitution Actually Requires Presidents To Not Enforce Unconstitutional Laws. University of Virginia Law School Professor Saikrishna Prakash explained in an article published in the Georgetown Law Journal that the president is actually constitutionally obligated to refuse to enforce unconstitutional laws:

The critics are correct in supposing that the President lacks a discretionary power to disregard unconstitutional statutes; instead, the Constitution is best read asobliging the President to disregard statutes he regards as unconstitutional. First, the Constitution never empowers the President to enforce unconstitutional statutes. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. Second, the President's duty to preserve, protect, and defend the Constitution requires the President to disregard unconstitutional statutes. When the President enforces a statute he regards as unconstitutional, he violates the Constitution no less than if he were to imprison citizens without hope of trial. Third, the Faithful Execution Clause requires the President to choose the Constitution over unconstitutional laws, in the same way that courts must choose the former over the latter. Consistent with these understandings, John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. Indeed, President Jefferson halted Sedition Act prosecutions on grounds that the Act was unconstitutional. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it. [Georgetown Law Journal, June 2008, emphasis added]

Prakash: Thomas Jefferson Was The First President To Refuse Enforcement Of An Unconstitutional Statute. Prakash also noted that Thomas Jefferson chose not to enforce the Sedition Act, believing it was unconstitutional:

As a matter of history, Thomas Jefferson was the first President who felt compelled to cease enforcement of a statute he regarded as unconstitutional. Believing that the Sedition Act was unconstitutional, Jefferson ordered his prosecutors to cease all existing Sedition Act prosecutions. Jefferson felt constitutionally obliged to arrest the execution of unconstitutional laws. He alsoconcluded that his Faithful Execution duty did not extend to unconstitutional laws because the latter were null and void. He was confident in his conclusions, believing there was "no weak part in any of these positions or inferences." [Georgetown Law Journal, June 2008

Gallagher Accuses Obama Of Applying "Strict Scrutiny" To Sexual Orientation

Gallagher: Decision Means That "Gay Is Like Black." During the segment, Gallagher also commented: "He not only is refusing to defend the law, he has unilaterally declared that gay is like black, that orientation is now subjected to strict scrutiny. I actually do not recall ever an Attorney General getting in front of the courts in deciding what's a classification subject to strict scrutiny under the law."

FACT: The Government Did Not Recommend Applying "Strict Scrutiny" To Sexual Orientation

Holder Called For The Use Of "Heightened Scrutiny" In His Letter To Congress. The phrase "strict scrutiny" cannot be found in any of the statements released by the Department of Justice about the decision to not defend DOMA. Rather, Holder recommended that some level of "heightened scrutiny" be used when dealing with sexual orientation cases:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation.   It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies:   (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society."   See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985). [Department of Justice, Letter to Congressional Leadership, 2/23/2011]

The Court Is Unlikely To Apply Strict Scrutiny When Dealing With Sexual Orientation Cases. As Ari Ezra Waldman, Teaching Fellow at the California Western School of Law in San Diego, points out, legal precedent seems to indicate that gays are more likely to be found as a "quasi-suspect class":

In this case, heightened scrutiny likely means that a statute must further "an important government interest in a way that is substantially related to that interest." That is a tougher standard to meet than rational basis review, which just requires a statute be rationally connected to a less important interest. I say "likely" because the Administration's press release simply referred to "some level of heightened scrutiny," which could be this intermediate scrutiny or strict scrutiny. There is some precedent for applying strict scrutiny -- furthering a compelling government interest in a narrowly tailored way -- from some federal courts and state courts. But, I believe intermediate scrutiny is a more likely result, as a number of federal and state courts have found gays to be "quasi-suspect classes."

As a practical matter, this means that if the court adopts heightened scrutiny, it will be harder for DOMA to withstand constitutional scrutiny. [Towleroad, 2/23/11]

Kelly Suggests That Obama's Decision Will Force States To Recognize Out-Of-State Same-Sex Marriages

Kelly Suggests Texas Will Be Forced to Recognize Massachusetts Marriages. Kelly also commented:

In the meantime, what does this mean as a practical matter? Does it mean that, now that the Obama White House and the Attorney general have said they believe the law is unconstitutional, does it have any legal effect, does it now mean that you can get married in a same-sex union in Massachusetts you can go down to Texas and force Texas to recognize it?

FACT: Section 3 Has Nothing To Do With State Recognition Of Out-Of-State Marriages

Holder Will Only Drop The Defense Of Section 3 Of DOMA. The suits currently challenging DOMA in the courts are specific to Section 3 of the law. Holder's letter clarifies that the government only finds Section 3 to be unconstitutional:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.    Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.  [Department of Justice, Letter to Congressional Leadership, 2/23/2011]

Section 3 Defined "Marriage" And "Spouse" For Federal Purposes. Section 3 of DOMA clearly deals with the definition of "marriage" and Spouse" for federal purposes:

SEC. 3. DEFINITION OF MARRIAGE.

    (a) In General.--Chapter 1 of title 1, United States Code, is

amended by adding at the end the following:

''Sec. 7. Definition of 'marriage' and 'spouse'

    ''In determining the meaning of any Act of Congress, or of any

ruling, regulation, or interpretation of the various administrative

bureaus and agencies of the United States, the word 'marriage' means

only a legal union between one man and one woman as husband and wife,

and the word 'spouse' refers only to a person of the opposite sex who is

a husband or a wife.'' [Defense of Marriage Act]

State Recognition Of Other State Marriages Is Mentioned In Section 2. Section 2 of DOMA, which the administration did not stop defending, absolves states from the requirement to honor same-sex marriages from other states:

SEC. 2. POWERS RESERVED TO THE STATES.

    (a) In General.--Chapter 115 of title 28, United States Code, is

amended by adding after section 1738B the following:

''Sec. 1738C. Certain acts, records, and proceedings and the effect

                        thereof

    ''No State, territory, or possession of the United States, or Indian

tribe, shall be required to give effect to any public act, record, or

judicial proceeding of any other State, territory, possession, or tribe

respecting a relationship between persons of the same sex that is

treated as a marriage under the laws of such other State, territory,

possession, or tribe, or a right or claim arising from such

                  relationship.'' [Defense of Marriage Act]