Attorney General Eric Holder Jr. faced questions today about whether he plans to abandon the legal defense of any other federal laws, after the administration's decision last week not to stand up for the core of the Defense of Marriage Act.
Holder testified before a House appropriations subcommittee primarily about the Justice Department’s budget for the next fiscal year, but the subcommittee’s chairman, Rep. Frank Wolf (R-Va.), used the chance to push Holder about the consequences of last week’s decision.
Wolf asked how President Barack Obama would react if a future Republican administration decided not to defend Obama’s 2010 health-care overhaul. “Are there other laws down there that you find it difficult to make a reasonable defense of?” he asked.
Holder responded that Justice Department officials “take seriously” their historical practice of defending statutes in court if a reasonable defense of them can be made, and he walked through the process that he and Obama used in the case of the Defense of Marriage Act. While he didn’t rule out letting other statutes fall by the wayside, he said the department would do so rarely.
“We again will look at these on a case-by-case basis, based on our historical obligation, that we have followed, to defend the statutes that Congress has passed,” Holder said.
The National Law Journal reported in October that 13 times in the past six years the Justice Department has told Congress it would not defend a law. Many of those decisions came in cases in which the solicitor general determined the government was bound to lose in court.
“I think it’s highly unusual for the department to pick and choose,” Wolf told Holder. “It almost looks like a political decision, more than anything else I can say.”
Holder noted that, since Congress passed the Defense of Marriage Act in 1996, the law regarding gays and lesbians has been altered radically, most notably because of the Supreme Court’s 2003 ruling in Lawrence v. Texas invalidating state anti-sodomy laws. “The world and legal landscape has changed in the 15 years since Congress passed DOMA,” Holder said.