This issue was why President Barack Obama instructed his administration to continue enforcing the Defense of Marriage Act even as he decided that law is unconstitutional and indefensible in the courts.
As the New York Times reported:
Chief Justice John G. Roberts Jr. accused Mr. Obama from the bench on Wednesday of not having “the courage of his convictions” for continuing to enforce the marriage law even after concluding that it violated constitutional equal protection guarantees. The chief justice’s needling touched a raw nerve at the White House. “Continuing to enforce was a difficult political decision,” said an aide who asked not to be identified discussing internal deliberations, “but the president felt like it was the right legal choice.”Thus, a little over twenty years ago Roberts was himself involved in a similar decision about a law the administration disagreed with. The President he was working for came to the same conclusion as the current President, to have his appointees adhere to the law while also having Roberts argue against it. But for some reason this President lacks “the courage of his convictions.”
Other presidents have enforced laws that they no longer defended in court, including the first George Bush, whose acting solicitor general, a man named John Roberts, once asked the Supreme Court to overturn an affirmative action program at the Federal Communications Commission.
It’s not too hard to imagine how Republicans in Congress, many of them already showing the signs of OIP Derangement Syndrome, would have responded if President Obama had declared his administration would set aside DOMA without judicial or legislative approval. As the Times reported, in the White House people had argued that action “would provoke a furor in the Republican House and theoretically even risk articles of impeachment.”
By one measure, to be sure, Roberts was consistent. Back in the Bush administration he argued against a progressive policy designed to open opportunities to people who’ve traditionally been kept out. From the bench he’s arguing the same thing.