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The Defense of Marriage Act

The Founders were concerned with the potential for abuse of power, so they gave it to one branch to make law (the Legislature), another to judge its constitutionality (the Judiciary), and another to enforce it (the Executive). The President’s responsibility to enforce the law, as well as the limits on his power to do so, have been debated throughout American history. This month’s controversy surrounding whether President Obama may ask the Department of Justice to stop defending the Defense of Marriage Act brings the separation of powers into the spotlight. If an act or a law is passed by Congress, but is unconstitutional, what can be done?


Questions to Consider

  1. What is the Defense of Marriage Act? Why has it been in the news recently?
  2. In Article II, Section 3, where the Constitution references the responsibilities of the President, it states “he shall take care that the laws be faithfully executed”. Similarly, in the Oath of Office, the President swears: “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.”  In theses contexts, what does “faithfully” mean?
  3. In the separated powers of the U.S. government, each branch has a different role. What are the roles of each of these branches with respect to laws?
  4. According to Attorney General Eric Holder, the Department of Justice and President Obama believe that Section 3 of the Defense of Marriage Act “violates the equal protection component of the Fifth Amendment.”   After reading the text of the Act and the Fourteenth Amendment’s Equal Protection clause, do you believe that Section 3 violates the Equal Protection Clause? Why or why not?
  5. Article IV, Section 1 of the Constitution states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” In this context, what does the wording “full faith and credit” mean? Given the wording of Section 2 of the Defense of Marriage Act, do you believe that the Defense of Marriage Act is unconstitutional? Why or why not?


Historically, marriage has been an institution with religious as well as civic significance. As a way of eliminating controversy associated with the definition of marriage, some have called for the creation of civil unions. Would the same constitutional issues arise around civil unions as have around marriage?