Holder’s same-sex marriage move stirs up separation of powers debate

Attorney General Eric Holder
By Scott Bomboy

Attorney General Eric Holder is making sweeping changes about how the federal government extends rights to legally married same-sex couples, in areas where the Justice Department has jurisdiction. The move should add more fuel to the debate over the roles of the executive, Congress and the states in deciding social issues.

The official policy statement will come from Holder on Monday, but news of it leaked out on Saturday before Holder made a public speech in Manhattan on Saturday night.
Holder, in the latest series of steps promised by the Obama administration, will issue a Justice Department policy memo. The directive will say that same-sex couples, who are legally married under the laws of a state that recognizes such unions, should receive equal benefits and treatment in areas like federal lawsuits and the U.S. court system, as well as in federal prisons.
“This means that, in every courthouse, in every proceeding and in every place where a member of the Department of Justice stands on behalf of the United States — they will strive to ensure that same-sex marriages receive the same privileges, protections, and rights as opposite-sex marriages under federal law,” Holder said at the Human Rights Campaign’s Greater New York Gala at the Waldorf Astoria in New York.
The move comes almost three years after the Justice Department said it wouldn’t defend the Defense of Marriage Act (DOMA) in court and about seven months after the Supreme Court said a key part of DOMAwas unconstitutional under the Fifth Amendment, in the United States v. Windsor case.
Two groups opposed the move, issuing statements questioning the Justice Department’s policy directive as infringing on states’ rights or overstepping the Executive’s constitutional authority.
“This is just the latest in a series of moves by the Obama administration, and in particular the Department of Justice, to undermine the authority and sovereignty of the states to make their own determinations regulating the institution of marriage,” said Brian Brown, president of the National Organization for Marriage, said in the statement.  “The American public needs to realize how egregious and how dangerous these usurpations are and how far-reaching the implications can be. The changes being proposed here . . . serve as a potent reminder of why it is simply a lie to say that redefining marriage doesn’t affect everyone in society.”
Family Research Council President Tony Perkins said the Justice Department’s move was a stretch into territory not yet settled by the Supreme Court.
“While the Supreme Court’s ruling in the Windsor case last summer required the federal government to recognize such unions in states which also recognize them, the Court was conspicuously silent on the status of such couples when they reside in a state which considers them unmarried,” Perkins said. He wants the issue settled in Congress and pointed to proposed legislation that would force the federal government to defer to the states when it comes to treating same-sex couples married in another state.
Holder cast the decision as the latest step in the nation’s evolving struggle with Civil Rights.
“The Justice Department’s role in confronting discrimination must be as aggressive today as it was in Robert Kennedy’s time,” Holder said on Saturday. “As Attorney General, I will not let this department be simply a bystander during this important moment in history.”
Currently, same-sex marriages are legal in 17 states and the District of Columbia, while 33 states don’t recognize same-sex marriages through various legal or statutory means.
Holder’s move has already agitated opponents who believe President Obama is legislating from the White House by using executive orders and Justice Department memos to make policy decisions that should fall to Congress, or the courts.
Senate Majority Leader Harry Reid also is supporting a possible Obama executive order that would ban workplace discrimination against lesbian, gay, bisexual and transgender federal contractors. The Senate has passed a bill on the matter that has been stalled in the House.
Every president since George Washington has issued executive orders, with the assumed authority under Article II of the Constitution, based on the president’s role as the chief executive and commander in chief, and his powers to make sure laws are “faithfully executed.” (Holder’s directive, while not an executive order, will have a similar policy effect.)
This power is limited, however. In 1952, the Supreme Court overturned an order to nationalize steel mills during the Korean War. “The President’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker,” said Justice Hugo Black.
In the Windsor decision about DOMA, Justice Anthony Kennedy did confirm in the Court’s majority opinion that “by history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.”
But Kennedy said since DOMA affected more than 1,000 federal statutes by limiting federal benefits eligibility to opposite-sex couples, it violated the rights same-sex couples already had in states where they were legally married, by forcing them to live as “unmarried” for federal purposes.
Since the June 2013 DOMA decision, the Obama administration moved to extend equal work benefits and tax considerations to same-sex couples who are federal employees.
Holder is also involved in a controversy in Utah over a U.S. district judge’s ruling in December that the state’s ban on same-sex marriage is unconstitutional. The Supreme Court later stayed that decision pending appeal, and Holder said he would ensure that about 1,300 same-sex Utah couples married in a 17-day period between judicial rulings would receive federal benefits.
Scott Bomboy is the editor-in-chief of the National Constitution Center.