WASHINGTON -- The Obama administration on Tuesday stood by its decision to defend the Defense of Marriage Act in the courts even as gay-rights groups insist the president does not have to uphold the law that he personally called "abhorrent."
"We can't declare the law unconstitutional," White House Press Secretary Robert Gibbs said during his daily press briefing. "Obviously I think, if you look at what was written, I think the president enumerates in there, the administration enumerates in there, our belief on this law as we balance the obligations that we have to represent the federal government. The president believes that this is a law that should not exist and should be repealed. But we, at the same time, have to represent the viewpoint of the defendant."
Gibbs' take has been, and seems likely to remain, the administration's default position unless Congress acts to roll back DOMA. Last week, Department of Justice spokeswoman Tracy Shmaler told The Huffington Post the when DOJ filed its most recent brief it was merely fulfilling its legal obligations, "defending the statute, as it traditionally does when acts of Congress are challenged."
The chances of a legislative remedy, however, are dimming. A Republican takeover in the House of Representatives virtually guarantees that the law will stay in place throughout the next two years. Gibbs said Tuesday that "given the current makeup of the Congress ... it is inordinately challenging."
Given that roadblock, gay-rights activists are urging the president to merely deem the bill unconstitutional and therefore indefensible in the court of law. There is an honest legal debate as to whether the executive branch can do this. That said, tradition tends to confirm its current position, that DOJ should defend the laws on the books.