There are so many different issues regarding the Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act. And to be accurate, he has only instructed that cases pertinent to Section 3 of the Act will be subverted. "...the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
From the liberal butt-kissing support to the neo-con priestcraft, the misinformation has spread faster than wildfire. It would take volumes to address it all. I want to discuss one individual aspect, and just the one.
Does President Obama (or any past or future President) have an obligation to defend laws they believe to be unconstitutional?
On January 20th (and the 21st), President Obama recited the Presidential oath of office: “I do solemnly swear (or affirm) that I 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.”
The President did NOT swear to support the Defense of Marriage Act. Even if I concede and give the former Congress the benefit of the doubt in stipulating that they upheld their Congressional oath by enacting DOMA, which between you and I, would be a lie. Nonetheless, let's hypothetically give them that benefit. The President is not oath-bound to defend or protect their decision.
This is not the first time, nor will it be the last when a President refuses to defend the constitutionality of a law or statute. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. Federal statutes are only legitimate if they are constitutional.
The Executive, Judicial and Legislative branches of our government each bears an independent responsibility to analyze the constitutionality of current and proposed laws. However, the Executive and Legislative branches are Constitutionally bound to obey Judicial decisions that address a statute but if the courts have not yet ruled on the issue, nothing prevents the President or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.
In his role, if the President truly believes that DOMA is unconstitutional as he says, then he is at the very least duty-bound to defer prosecutions until the courts have had their say. However, the Obama Administration has made clear their position that they believe it to be unconstitutional, thus paving the way for a show down at the Supreme Court.
So to say that President Obama's actions are unconstitutional, or un-American, well the opposite couldn't be more true than on this issue as he attempts to "protect, preserve and defend the Constitution of the United States.”