Today in an unprecedented move, President Obama ordered Attorney General Eric Holder to cease defending the 1996 Federal Defense of Marriage Act which is being challenged in several states by supporters of homosexual marriage. According to the statement issued by Attorney General Eric Holder earlier today, the President now believes that "classifications based on sexual orientation should be subject to a more heightened standard of scrutiny". The statement went on to say, "the President has 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 in such cases. I fully concur with the President’s determination.” The operative phrase here is "the President has concluded".

The law was in response to a real concern by Congress that Hawaii or other states would legalize homosexual marriage by judicial review or legislation forcing other states to recognize the marriage under the full faith and credit clause of the constitution. The law defines marriage as the union of one man and one woman by the federal government. The law requires that no state or political subdivision be required to recognize homosexual marriage. The law was passed by large bipartisan congressional majorities, 85-14 in the Senate , 342-67 in the House and was signed into law by President Clinton. It should be noted that the law does nothing to stop states from legalizing homosexual marriage or other similar legal schemes.

The President's action is shocking; he has decided to take it upon himself to determine which federal law is worthy to defend based solely on his own personal beliefs. His statement failed to provide any legal basis for his decision such as a ruling by a federal appellate court invalidating the law as unconstitutional or legislative action by congress repealing the current law. Rather he decided to substitute his own personal political view as the mechanism to decide the constitutionality of a federal law versus the judiciary. When congress passes a law, there is a presumption that the law is constitutional. If a citizen disagrees, they have the right to challenge the law, however the executive branch has an obligation to vigorously defend the law.

Yet even when feigning its responsibility to defend the law, the Obama administration put forth an inadequate defense to undermine the law all along. In two lower court cases, Gill et al. Office of Personal Management and Massachusetts v. U.S. Department of Health and Human Services, the Justice Department made it clear in their answer that it does not support the law, believes it to be discriminatory and supports its repeal. Is it then surprising that the lower court determined that section 3 of DOMA was violative of equal protection and due process? Following the President's twisted logic, he should refuse to implement his healthcare reform law as it was declared unconstitutional by a federal court in Florida. Oddly the President has indicated that he will still enforce the law while not defending it, yet he has instructed the Census Bureau to count those who are in homosexual marriages and has allowed homosexual couples to recognized on passports.    

The President's failure to defend and enforce the current federal law raises several issues such as separation of powers, unethical conduct and knowingly violating his oath of office. What is really troubling is the precedent that has been created by the executive branch. The President is not a King, he represents one co-equal branch of government.

 The President's decision must be reviewed by the congress consistent with the checks and balanced established by the constitution. Congress has a responsibility to defend the current law and to conduct oversight of the executive branch. As House Speaker Boehner promised to adhere to the Constitution when the 212th Congress convened in January, now is the time to put that promise in action.