What is DOJ’s Duty to Defend DOMA and DADT?

October 18, 2010

The Department of Justice filed appeals last week of decisions striking down the Defense of Marriage Act and "Don't Ask, Don't Tell," even though President Obama has publicly expressed his disapproval of both laws.

The Justice Department explained that the appeals were raised pursuant to its policy of defending all federal legislation. Still, the DOJ's decision to appeal raises the question: Just what is the administration's duty to defend?

Three experts tackled that question during a national conference call hosted today by the American Constitution Society and The National LGBT Bar Association.

Georgetown University Law Professor Nan Hunter said the Department of Justice should defend the constitutionality of "Don't Ask, Don't Tell," but it should also "go farther than it has" in explaining the administration's opposition as a policy matter, and in explaining how the precedent has changed since the Supreme Court decided Lawrence v. Texas, which struck down Texas's sodomy law.

"The Justice Department I think could do a great deal more than it has done to put before the court a nuanced analysis of sexual orientation law that accurately reflects what the status of the law is," Hunter said.

Walter E. Dellinger III, chair of the appellate practice at O'Melveny & Myers and former acting U.S. Solicitor General, went a step farther, suggesting that the Obama administration should appeal the "Don't Ask, Don't Tell" decision, while arguing that the law is unconstitutional.

"If the president believes that a restriction is harmful to national security, and here the president has said that it is, then surely from the president's own viewpoint it is unconstitutional and he ought to feel free to tell the court that," Dellinger said.

Georgia State University College of Law professor Neil Kinkopf expressed concern that the Obama administration would not have standing if it argued that the law is unconstitutional, because there would be no dispute or controversy between the parties.

But Dellinger disputed that characterization.

"There is adversity here because the government's position is, it is going to comply with the law unless and until a court of final resort tells us otherwise," Dellinger said.

Listen to a recording of the call here.