The Obama administration’s announcement today that it regards the Defense of Marriage Act as unconstitutional and will not defend it in court is the latest act in a striptease. President Obama favors same-sex marriage — favors its judicial imposition — and is casting off the disguises that have hidden that position one by one.
The portion of the Defense of Marriage Act on which the administration just opined defines marriage as the union of a man and a woman for the purposes of federal law. So if a state court declares that in Massachusetts men can marry each other, its edict does not require the federal government to provide spousal benefits under Social Security to such couples. Obama, while claiming to oppose same-sex marriage, has also favored repeal of this act.
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The administration initially pretended to defend the act’s constitutionality in court while actually throwing the case. It abandoned legal defenses that had previously succeeded in court and made other defenses so half-hearted that one judge cited its record in striking down the law.
In today’s announcement, the administration says that the Defense of Marriage Act discriminates on the basis of sexual orientation, that the court should apply “heightened scrutiny” to all laws that so discriminate, and that the law cannot survive this scrutiny. The reasoning is backward. If there are good reasons for public policy to recognize only a subset of opposite-sex couples as married — President Obama’s stated position! — then that policy does not discriminate against people inclined to enter relationships incompatible with that definition. (It does not discriminate against people who are oriented toward triads, either, regardless of what’s on HBO.)
If, on the other hand, we assume that there is no good reason for the law to define marriage as necessarily heterosexual, then of course a law that thus defines it cannot survive scrutiny. About which view of marriage is correct the Constitution is quite obviously silent. It is also silent, except by implication, about whether the courts should make this determination; and the implication is clearly negative.
The administration has not come out and said what logic must commit it to believe: that every state that defines marriage as the union of a man and a woman has also been violating the Constitution from 1868 right until the present day. If they are discriminating against gays and lesbians; if federal judges must bar any laws that discriminate against them unless they see a really strong reason to allow those laws; and if no such reason applies in the case of marriage — why, then every state law and state constitution that recognizes marriage to be what a majority of Americans believe it to be is in defiance of the Fourteenth Amendment’s equal-protection clause.
In short, same-sex marriage should get its very own Roe v. Wade. We would like to think that even some people who favor this result disapprove of the tawdry — undemocratic and dishonest — way Obama has sought to bring it about.
John Boehner, the speaker of the House, should arrange for his legislative body to hire counsel to defend the act in court, now that the administration has first revealed and then proclaimed its lack of interest in doing so. Obama claims to favor the defense of both marriage and the Constitution. He has been equally faithful to both causes.
"There is no gay marriage. There is marriage and then there's redefinition of marriage. And if you're going to redefine marriage for the gays, why in the world not for the polygamist?"
This is all about gays being allowed same financial rights as a hetero couple. In MI, the MCLC announced it was going to allow all gov't employees to select one adult (residing in their home) to give workers benefits. They tried years ago to go the gay route, and were voted down. Now, they rammed it through with "one adult"instead. Essential it is more comprehensive.
It will still cost state mega bucks.
Crazy liberals.
Up to this point, I had believed that it was the job of the justice department to enforce the law of the land and the job of the judiciary to determine if that law adheres to the constitution of not. If this is allowed to stand does it not open the way to make the judiciary inconsequential? In other words, the justice department has now assumed the role of both enforcer and judge of the law. This must not be allowed to stand.
Obama has based this move on the expansion of the 14th amendment through the Supreme Court's illegitimate addition of the "privacy" doctrine to the hopelessly vague first section of the 14th amendment. In order to have the rule of law, those charged with power in a polity must respect the original written text of the laws. If they are allowed a very broad discretion in the interpretation of the text, you quickly are reduced to the rule of men, where legal power is based on what the rulers can get away with rather than some pre-agreed foundational understanding. The 14th Amendment was about prohibiting government race discrimination. In expanding this original meaning, the Supreme Court arrogated to itself the power to effectively amend the Constitution, a procedure for which the document itself requires approval by super-majorities of democratically elected legislators. The real solution is to amend the 14th amendment to restore its original meaning as a ban on governmental race discrimination. This will end not only the Obama administration's move toward supporting the judicial imposition of gay marriage nationwide, but a host of other constitutional abuses by the modern Supreme Court.
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The only problem with the striptease metaphor is that we usually like it when the clothes come off
Hey Timely Renewed, Obama actually hasn’t based this move on an expansion of “Privacy” in the 14th Amendment, he’s nominally based it on a novel (and illegitimate) interpretation of “Equal Protection” under the 5th Amendment. I know that seems like a technicality, but it actually matters quite a bit as a matter of whether the Obama Administration has a valid constitutional argument under existing precedent.
Let me get this straight. At a time when the country has a mountain of debt due in large part to unsustainable entitlement programs, Obama and the Democrats (liberals) want to make even more people eligible for entitlements that we already cannot afford? Brilliant!
The penultimate paragraph of the editorial speaks for me exactly. I have no dog in the "what is marriage?" fight. My ideal would be for the state to withdraw from the marriage business, and concentrate on making sure kids are treated right.
In the "rule of law" battle, however, I have a much deeper interest. The philosopher-kings are on the march, and have been for longer then I've been alive.
A nice reminder MAFV. Marriage is no more a state issue than is basic arithmetic. Marriage is between a man and woman, and 2+2=4. Declaring differently is an abuse of reason.
why, then every state law and state constitution that recognizes marriage to be what a majority of Americans believe it to be is in defiance of the Fourteenth Amendment’s equal-protection clause.
Am I understanding this right? Are you saying the 14th amendment's equal protection clause is interpreted by what the majority of Americans think it should be? If that's true, please explain to me the Courts decision in Brown V The Board of Education case. I'd really like to know why the Government is evolved in marriage to begin with. And clearly on a Federal level, so now we go to the States and then get it all murky again with States Rights issues. Why doesn't Government on all levels remove themselves from this intrusion and start fixing the roads!
bobmontgomery: The implication is that he has been UNfaithful to both the cause of marriage and the cause of honest constitutional interpretation. His faithfulness is equal in both cases: zero = zero.
larry allen: That's not what they're saying. What they're saying is that (i) if original public meaning is the key, then contemporaneous understandings carry great weight, and (ii) the logical implication of Obama's move is incompatible with his (supposed) opposition to gay marriage and the assertion that he will continue to enforce DOMA. Brown v. Board can be defended on originalist grounds, and there were in fact a number of radical republicans among the framers of the 14th amendment who did think that it barred segregation.
Although the social conservatives in the Republican party have a voice I cringe every time they push the party towards more and more conservative positions on social issues. If the party wants a future they had best look forward to the next generation of voters who could care less who marries whom or what their sexual orientation is. The Republican party will have a far brighter future and provide a brighter future for the country if they concentrate on the formidable fiscal problems facing the country and leave the social issues for home and church.
I agree with Flynnbw this issue is a 10th amendment issue:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
I also agree with Timely Renewed's position on amending the 14th amendment.
Calvin Smith has it right. Obama has now joined California's previous governor and attorney general (now governor again)in deciding whether a law is constitutional or not. This is plainly the function of our courts, not of the executive branch whether state or federal. Consider the situation in January of 2013 if a newly-elected Republican president declared that Obamacare is unconstitutional and therefore not to be enforced. Can you imagine the
uproar from the left!
@truthteller--I cannot disagree more. We discard these social issues at our peril. If we spend all our time and energy only on fiscal matters, we will eventually end up with a balanced checkbook and no society worth preserving to spend the money on.
I agree that home and church are vital on the social side, but little by little over the years those (and other) traditionally conservative institutions have been pushed down the road to liberalism by the judiciary, the legislatures and the culture as a whole. They can't do it alone--there has to be some overarching societal goal to point to when you are going uphill against the cultural tide.
The first comment from MAFV quoting Dr. Sowell nails it--if we say that this is OK, there's no reason that any partnering of any kind can't follow. Think about your kids in 10 years asking you about marriage, and why 3 people can't get married. There's no good answer once we start down this road--only "it's wrong and unnatural, and it's not marriage". But that's the argument that preserved marriage between a man and a woman for all of history--and we're currently arguing about the impact of throwing it away, instead of figuring out how to keep it a valid argument.
We are having this argument, when we should be rejecting the premise. Marriage is between a man and a woman, period. Anything else isn't marriage, and is as made up as Kwanzaa.
Larry Allen asks a great question: "I'd really like to know why the Government is [in]volved in marriage to begin with."
Marriage is a bizarre intersection of the ecclesiastical and the civil. If marriage were being invented today, it would probably be just like Soviet marriage: You get a license and you're married. Instead, we have this wacky situation where a guy with a collar is allowed to confer legal rights by incantation. Think about it.
Some of the legitimate objection to gay marriage stems from this fact. When we think of marriage, we don't think only of the license, if we even think of the license at all. We think of the church, the rice, the bells, blah, blah, blah.
But the real problem with gay marriage is that sexuality is different from other characteristics. A hundred years from now, the gay married couple next door will be "the gay married couple," not "the married couple," because, crudely speaking, our definition of "marriage" has something to do with the way the parts fit together, and that isn't going to change.
Now, I can understand why gay people want to be able to say, "We're married." Forget about the legal rights -- there's no really good reason anymore to deny two guys or two gals the same package of legal rights hetero couples have. (We can talk about children later.) The real issue here is one that no one talks about. I will:
Imagine a person born with five fingers on each hand, as opposed to four fingers and an opposable thumb. Would you want to discriminate against that person, make that person feel unwelcome or unworthy? Absolutely not! But is it obvious that something on the person has expressed itself in a genetically unhelpful way? You bet! In this sense, legalization of gay marriage does nothing more than to declare that, in the case of people without opposable thumbs, their fifth finger is legally declared to be a thumb. If it makes the guy without thumbs feel happy, go ahead -- pass the law that says the fifth finger is a thumb. But let's face it -- no one with thumbs is going to buy it.
Just like straight people are not going to swallow the idea that what two gay people do together is "marriage" in the sense that straight people understand marriage and that gay people would like to.
Could Congress decide that "we think Obamacare is unconstitutional" and use the power of the purse to deny the Solicitor General's Office any funds to defend it in court?
I'm experiencing the strange sensation of agreeing with MikeB, for the most part. But I would take it one step further. Unlike the no-thumbs scenario, I would argue that there are good reasons for maintaining a societal taboo against homosexuality. The more prominent and accepted homosexuality is in society, the more likely it is that the 15-year-old boy who's awkward around girls will decide that he might be gay, or that the 20-year-old girl who, in the face of a bad experience or two, decides that all men are dirty, smelly, neanderthals, will decide that she's a lesbian. Odds are that both of them are wrong, but it may take them years to figure that out, and they may ruin their lives in the meantime.
In addition, on a societal level, tolerance of homosexuality can distract men from their duties to their families and children (including creation of children). Taboos tend to be adaptive (e.g., incest, dietary laws). I would hypothesize that one reason taboos on homosexuality are so widespread is that it interferes with both male-male bonding and male-female bonding, and consequently with the ability of the group to survive and prosper.
There are a small number of people (almost all men, I think) who are immutably and exclusively homosexual. But there's a much larger number that could go either way some or all of the time, depending on social circumstances and life experiences. That latter group will have better lives, and society will work better, if homosexuality is taboo than if it's accepted. Holding the line against gay "marriage" is part of that.
