29 Pages Posted: 10 Jan 2013
Date Written: 2012
By creating a federal definition of “marriage,” the Defense of Marriage Act (DOMA) denies married same-sex couples more than 1,000 benefits under federal law. But DOMA does not prevent the federal government from granting benefits to same-sex couples under all circumstances. By interpreting laws other than DOMA, the Obama Administration has extended domestic partner benefits to married and unmarried same-sex couples in areas such as employment, housing, and health care. Moreover, in the unique context of immigration law, the Obama Administration has exercised prosecutorial discretion to prevent the foreign-born spouses and partners of U.S. citizens from facing removal from the United States. By exercising discretion in the interpretation and enforcement of federal law, the Administration serves its twin obligations of promoting equal protection while faithfully executing the laws — including complying with DOMA. These features of executive discretion highlight the President’s broader role in a conversation with the coordinate branches on questions of constitutional meaning.
Keywords: DOMA, Statutory Interpretation, Constitutional Law, Immigration Law, Prosecutorial Discretion
Suggested Citation: Suggested Citation
Landau, Joseph Benjamin, DOMA and Presidential Discretion: Interpreting and Enforcing Federal Law (2012). Fordham Law Review, Vol. 81, 2012. Available at SSRN: https://ssrn.com/abstract=2198495