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Memo To Conservatives: Obama Administration Is Still Enforcing DOMA

March 01, 2011 11:50 am ET

Since the Obama administration announced that it would no longer be defending Section three of the Defense of Marriage Act (DOMA) in court, conservative commentators and pundits have falsely claimedthe president for refusing to enforce the law.

Conservatives Falsely Claim Obama Admin Will Not Enforce DOMA

Newt Gingrich: Obama's "Job Is To Enforce The Rule Of Law," And Not The "Rule Of Obama." Gingrich, a potential 2012 GOP presidential candidate made the following statement in an interview with Newsmax.TV on February 25:

GINGRICH: I believe the House Republicans next week, should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath which he took on taking office. [...] And [they] should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job. His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent. [Newsmax.com, 2/25/11]

Mike Huckabee: Not Defending The Law Is "Really The Same Thing" As Not Enforcing It. Huckabee, another potential 2012 GOP presidential candidate, told Chris Wallace on the February 27 edition of Fox News Sunday not defending DOMA is "really the same thing" as not enforcing it:

HUCKABEE: If a president begins to decide which pieces of the law he's going to choose to support, or endorse, or enforce, based on a lower court decision, not because it's actually bubbled up to a final adjudication, that's an unusual precedent for a president to take.

WALLACE: Now he says he's going to enforce it, he just says he's not going to defend it in court cases.

HUCKABEE: Well it's really the same thing. That he has decided that this a part of the law that he doesn't like, so he's not going to recognize it. [Fox News Sunday via Media Matters For America,2/27/11]

Cal Thomas: "Obama's Duty Is To Enforce The Law." In a February 28 column for the Washington Examiner, headlined "Obama's duty is to enforce the law," Thomas, a syndicated columnist, suggested that Obama has declared he will not enforce DOMA:

The president and his attorney general have concluded that because DOMA is being challenged before the 2nd Circuit Court of Appeals, which they say "has no established or binding standard for how laws concerning sexual orientation should be treated" -- they will circumvent or overrule judicial authority and decide the matter for themselves.

This "we are the law" thinking is what we oppose in Middle East dictators.[Washington Examiner2/28/11]

Tony Perkins: Obama said "He's Not Going To Enforce" Section Three Of DOMA.  Perkins, president of the Family Research Council, asserted:

PERKINS: What the president said, is that in looking at it, that provision that provision that defines marriage as a man and a woman is unconstitutional and therefore he's not going to enforce it. [...] What's next? What other law passed by Congress could this president going to decide, "oh, I think it's unconstitutional therefore not only am I not going to enforce it, but I'm not going to defend it when it's challenged in the courtroom"?  [American Family Radio Talk via Joe.My.God, 2/28/11]

Fact: Obama Administration Is Still Enforcing DOMA

Obama And The DoJ Will Continue To Enforce DOMA, Despite Not Defending It In Court. Attorney General Holder released a statement clarifying that, although the administration would not provide a legal defense of Section 3 in court, it will continue to enforce the law as written:

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.  [Department of Justice, Letter to Congressional Leadership, 2/23/2011]

The Obama Admin Currently Enforcing The DOMA Case In Ninth Circuit. As Reuters reported on March 1:

The Obama administration will press ahead with its fight against one federal employee's bid to obtain health insurance for her same-sex spouse [...]days after it announced that a federal statute defining marriage as a union between one man and one woman -- known as the Defense of Marriage Act -- was unconstitutional":

The Obama administration will press ahead with its fight against one federal employee's bid to obtain health insurance for her same-sex spouse, according to a government court filing on Monday.

The decision by the Justice Department comes days after it announced that a federal statute defining marriage as a union between one man and one woman -- known as the Defense of Marriage Act -- was unconstitutional.

[...]

Given the recent Obama policy shift on the marriage act, U.S. District Judge Jeffrey White issued a written order last week asking the administration to explain how it could continue defending the Golinski lawsuit.

In a filing on Monday, DOJ attorneys reiterated that Obama told executive agencies to enforce the law until Congress repealed it -- even though the administration would no longer defend its constitutionality in court. [Reuters, 3/1/11, emphasis added]

Previously:

Debunking Conservative Talking Points On DOMA