On March 4, 1861, Abraham Lincoln stood on the steps of the United States Capitol building and took the oath of office as President of the United States. At that point, seven states had already voted to withdraw from the Union, and the beginning of hostilities loomed at Fort Sumter. As he stood to address the nation, the new President was aware of the situation, and of his responsibilities.
One of the goals of his Inaugural Address was to reassure the citizens of the southern states that he would faithfully enforce the laws of the United States, including those that recognized slavery. Many in the South believed that Lincoln was a radical who would flout the laws — and violate his own oath of office — in order to advance his anti-slavery policy agenda. Of particular interest to the southerners was Lincoln’s position on the Fugitive Slave Act, an evil law that required federal officials to return escaped slaves to their masters — a law that Lincoln bitterly opposed on principle.
As Lincoln rose to speak, he was well aware that he was no longer just a politician, but he was the chief law enforcement officer of the United States, who had taken a solemn oath that he “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”.
Here is what Lincoln went on to say about the Fugitive Slave Act:
I take the official oath to-day with no mental reservations and with no purpose to construe the Constitution or laws by any hypercritical rules; and while I do not choose now to specify particular acts of Congress as proper to be enforced, I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional.
In short, Lincoln promised to put his own policy preferences aside, to fulfill his oath to uphold even laws that he found odious. He promised to be faithful to the Constitutional obligations of the presidency, even though that upset the anti-slavery forces who elected him. This episode is, in part, why Lincoln is considered one of our greatest presidents.
Flash forward to the present day, and we find a very different situation.
The issue of same-sex “marriage” divides our nation. Five states have legalized it and two others (including New York) recognize out-of state “marriages”, but forty-four states refuse to recognize it or its equivalent (“civil unions” or “domestic partnerships”) by statute or constitution. That’s a pretty broad consensus against the re-definition of marriage.
In 1996, Congress passed the Defense of Marriage Act by overwhelming majorities, and President Clinton signed it into law. This law provides that only marriages between one man and one woman will be recognized under federal law. That law has been challenged, and a federal district court in Massachusetts found it to be unconstitutional. That case is currently on appeal.
Now, remember that the President of the United States is, under the Constitution, the chief executive officer of our government. That means that it’s his constitutional duty to implement and defend the laws of the United States, when they are challenged. It is not for him to decide which laws shall be implemented, and which shall not — he’s required to execute them all.
Remember also that President Obama favors the legal recognition of same-sex “marriage”. He’s not willing to say so explicitly now, but he did say it back when he was a State Senator in Illinois. He claims that he’s “wrestling” with the issue, but nobody has any doubt about the outcome of that match, based on his statements on the campaign trail, and his record in office.
So it really comes as little surprise that today he announced through his Justice Department that he has unilaterally decided that the Defense of Marriage Act is unconstitutional, since it cannot, in his view, be supported by reasonable arguments. As he intended, this decision has pleased to no end the “gay rights” movement, which has diligently supported him.
Make sure you understand what has happened here. The President of the United States has decided that there is no reasonable argument to support the authentic definition of marriage, and believes that a ban on recognition of same-sex “marriages” violates some hidden provision of the Constitution that only he properly understands.
So, the President has directed the Justice Department not to defend the law in any further court challenges. In other words, he has told executive branch employees that they should fail to do their duty. Just as he has decided to refuse to do his.
Of course, the President has decided to eat his cake and still have it too. He also said that the Defense of Marriage Act would continue to be enforced. Huh? He is basically saying that he he considers a federal law to be invalid, that he will not defend it when it is attacked, but he will nevertheless implement it. How precisely an executive agency will be able to enforce a law that their boss has declared to be invalid is a mystery.
The only way that makes sense is that the President is begging for people to sue the federal government for the recognition of their same sex “marriages”, because he has already decided to surrender to them in court. In other words, he wants to overturn the authentic definition of marriage, but he wants a court to do the deed, instead of using his political muscle to pass a law repealing it.
The President should re-read Lincoln’s Inaugural Address again. That’s how a statesman behaves in a time of great public controversy — by doing his sworn duty, even if he finds it distasteful, even if it will annoy his backers.
There’s a different man from Illinois in the White House now, and a very different standard of constitutional integrity.