Thursday, February 24, 2011

Victory by default

The US federal government is refusing to defend the constitutionality of the Defense of Marriage Act in the courts. Good. DOMA is an act for federal marriage bigotry, requiring the federal government to refuse to recognise same-sex marriages and granting states permission to refuse to recognise same-sex marriages performed in other states. It is an explicitly discriminatory law, and its constitutionality is being challenged in the courts. And with the federal government refusing to contest it, that means the law will be struck down by default.

But while this is great news for same-sex marriage, it does set a dangerous precedent. Gaming the adversarial system in this way allows the President to effectively overturn laws without any real scrutiny at all. And under a different administration, that power could be used against different targets. Healthcare, union rights, abortion - all are targets of constitutional challenges from right-wing whackos, and all it will take for them to be overturned is for a future President to refuse to defend them - or for a future congress to deny any funding to defend them. While on the one hand the government shouldn't be defending the indefensible, OTOH questions of constitutionality should be decided by the courts, not by the whim of one man, however well-intentioned.