Oh, boy. So this is an excellent, delicious point:
With the Justice Department backing away from the fight, it will be interesting to read the arguments defending the Marriage Act made by its supporters in Congress. The very same folks who are decrying Congressional power to regulate the purchase of health insurance will be decrying the lack of Congressional authority to regulate marriage. Just sayin'.
One of the arguments against the Affordable Care Act is that Congress doesn't have the power to regulate health care because it doesn't have the power to make people eat broccoli. In fact, in ruling against the act, Judge Vinson actually says:
"In the broadest sense every decision we make is economic. The decision to marry. The decision to keep a job or not has an economic effect[...]If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?"
This is going to get very interesting very quickly, especially if Republicans decide to defend DOMA in court. Which 'economic activities' are okay to regulate and which are not? Now that Judge Vinson himself has compared broccoli and health care to marriage, based on conservative arguments brought before him in court, how are they going to backtrack on this?
But, it gets a whole lot better. In an article defending Vinson's decision on health care is none other than... Maggie Gallagher:
If Congress can force you to purchase private health insurance, Judge Vinson pointed out, then "Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system."
"Make them eat broccoli!" the liberal professoriate replies, not at all shocked by the idea that Congress could have that power.
Make them eat opposite sex marriage, Maggie Gallagher and NOM cried, not at all shocked that Congress shouldn't have the power to regulate someone's marital activities. She goes onto say that Vinson's ruling is "Reagan's revenge." I guess Tauro's ruling striking down DOMA is Nixon's revenge, as well.
The legal blog The Volokh Conspiracy says:
If you look at AG Holder’s reasons for why DOJ won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that “the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA.” This theory is not compelled by caselaw. Rather, it’s a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.
[...]
Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.
They are talking about DOMA, not Republican opposition to health care, which is also based on a new legal theory that courts haven't weighed in on yet. In fact most recent Supreme Court decisions would point to upholding the health care law, unless, of course, they adopt this new conservative legal theory. If Republicans win the presidency, I'm sure the Volokh Conspiracy will come back to this post and tell us that the Republicans shouldn't refuse to defend health care based on previously unvetted legal theories, right? Somehow I doubt that.
In short, hypocrisy is fun to watch, and we will see a lot of it in the upcoming years. I hope that Democrats will take advantage of all the optics here. It's way too delicious to pass up.