Obama’s pulling the plug on the Justice Department’s defense of DOMA ends a long-running charade that had DOJ lawyers “defending” the statute while refusing to make arguments that political higher-ups in the department deemed “unreasonable.” For instance, as Attorney General Holder’s letter admits, the department had already deemed legally undignifiable the argument that heterosexual marriage serves a procreative function necessary for an ordered society, so the AG and the White House instructed Civil Division lawyers simply not to advance that highly credible argument because, in the view of political appointees, more modern social science did not bear it out.
In other words, while the DOJ was nominally defending the statute, it was, as a result of political interference, already taking a dive. It was the sort of thing that a Republican administration would have been excoriated for. Today’s announcement at least has the advantage of admitting what was already the case.
What puzzles me, however, is White House press secretary’s Jay Carney’s suggestion at today’s presser that President Obama is still “grappling” with the gay-marriage issue. If today’s letter from the attorney general to Congress is any indication, the administration has now fully committed to the idea that it is unconstitutional to deny marriage benefits to homosexuals. According to the letter, it is the administration’s position that discrimination against homosexuals is subject to strict scrutiny under the Equal Protection Clause and that all sorts of proffered rationales not borne out by “modern social science” — such as the procreative function of marriage — are categorically unreasonable or simply moral bigotry.
The administration’s analysis of DOMA leaves little left to decide on the question of gay marriage. Let there be no doubt, Mr. Carney, President Obama has declared his support for gay marriage, at least as a constitutional matter. And since that constitutional analysis is really policy dressing itself up as law, I think we can guess where he is on the policy question, too.
Governor Daniels, is this part of the truce?
Reply to this commentLinkReport AbuseHe's grappling with this issue now? How about grappling with the powderkeg in the Middle East and trying to provide some form of leadership.
Reply to this commentLinkReport AbuseHe always has his eye on the ball, unfortunately it's always the ball that's not in play.
One can agree that heterosexual marriage serves a procreative function necessary for an ordered society and also feel that gay people should be able to get married, too.
Reply to this commentLinkReport AbuseShould we scrap rule by the elected representatives of the people under a constitutional republic for the collective wisdom of the denizens of a Sociology Department faculty lounge? This is the legacy of "Brown vs Board of Ed" that ruled, whether correctly or not, using "modern social science" as evidence.
Reply to this commentLinkReport AbuseI'm pretty sure that heterosexual marriage will still be able to serve a procreative function even without the backing of the DOJ.
That said, I'm sure Obama IS grappling with the issue, in the sense of how much of the black churchgoing crowd he might lose if he gets too out in front on this issue. It's a losing issue for both sides, my advice to the Republicans would be to let the other guy lose as much as possible with it for a while.
Reply to this commentLinkReport AbuseWell, I suppose the President could still be grappling with the issue in the way that a great many people are grappling with the issue in this country: recognition is due to gay couples, personally not comfortable with calling it marriage, but what is the alternative? Of course, this is a charitable view.
Personally, I favor a state-by-state approach to civil marriage.
Reply to this commentLinkReport AbuseIronically, the purpose of using social science in Brown was to avoid completely overruling Plessy v. Ferguson.
The Court could have simply stated that separate but equal on the basis of race was unacceptable under ANY circumstance, instead of relying on modern social science to demonstrate the schools were not equal.
Reply to this commentLinkReport AbuseMake no mistake. Obama is "grappling" with nothing but the problem of his re-election.
His tossing DOMA under the bus keeps the peace with his base, and diverts attention from foreign fiascoes and budget woes.
The man has never been anything but a doctrinaire liberal, on the left side of the spectrum even among Democrats. Words to the contrary, especially from Obama, are worthless.
Reply to this commentLinkReport Abuse"the department had already deemed legally undignifiable the argument that heterosexual marriage serves a procreative function necessary for an ordered society"
Calling this argument "highly credible" is kind of a joke.
I can defeat this argument rather easily. The law does not require straight married people to procreate, and many people procreate without being married. For instance, the elderly are allowed to marry even if they can no longer have children. Where is the outrage on National Review about elderly people getting married without having kids? Where are the laws and constitutional amendments banning the elderly from marrying? There haven't been any, because the argument is nonsense and just an excuse to hide animus against gay people.
If your argument is really that ONLY those that can procreate can get married, then you need to explain why you are singling out gay people and ignoring the elderly and sterile that are allowed to marry.
Further, if a gay couple were to adopt a child, how would denying that couple the right of marriage help to make society more orderly? If marriage makes families and therefore societies more orderly, then wouldn’t allowing gay marriage make society MORE stable, not less?
Reply to this commentLinkReport AbuseBTW, “undignifiable” isn’t a word.
We have to respect the dignity of the office...but "still grappling?" ...this guy is just... I literally cannot bring myself to listen to anything he or his minions say anymore...his words seem to be 99% worthless gobbledygook, peppered with lies. There is nothing to argue with, to take seriously, and it's all perpetually revisable or "in process." Just give me the lead, the summary, but not any actual Obama WH sentences, please! The man is naked. I think he might not run again--barring a kind of insanity, even he must now know how not cut out for this job he is.
Reply to this commentLinkReport Abuse“recognition is due to gay couples”
Oh?
Reply to this commentLinkReport Abusebobbytwotimes, the answers to your questions can be found here:
External Link
I would add a reason to the analysis of Messrs. George et al.:
Reply to this commentLinkReport AbuseIf the infertile or even the elderly choose to adopt, they provide the child with a married mother and father.
"If your argument is really that ONLY those that can procreate can get married, then you need to explain why you are singling out gay people and ignoring the elderly and sterile that are allowed to marry."
You have to distinguish between the macro level -- the social institution of marriage -- and the micro level -- individual marriages.
The social institution of marriage provides the values, roles, expectations, ideals, and norms that channel heterosexual behavior to the benefit of children. That said, not all heterosexual couples will be able to conform to all that the institution of marriage has to offer.
Thus it makes complete sense to assert that marriage is about procreation, while at the same time acknowledging that not all hetero couples can have or want to have children.
Laws such as DOMA address marriage at the macro level by affirming that marriage is for heterosexual couples, namely, the only people who can potentially create new human life through the unique act that traditionally is what consummates a marriage.
Reply to this commentLinkReport AbuseRe: bobbytwotimes' post
That hardly defeats the argument for traditional marriage.
First, the article to which Hardcastle links argues that the key factor in marriage is a pairing of people *with the orientation towards procreation*. The distinction is important; the article well worth the read.
Second,any restriction on marriage in terms of age or sterility would require undue government intrusion.
For the latter, it would require the government to know one's private medical history.
For the former, such a restriction would run into the problem of limits. For what age would constitute the dividing line between "able to procreate" and "not able to procreate"?
(E.g. What would be the cut-off? 43 years old? 45? 50? To fix that marker in any precise or meaningful way would prove impossible.)
Traditional marriage did not -- pace bobbytwotimes -- develop as a gigantic snub to homosexuals. It developed because there is something unique -- namely, the orientation towards procreation -- in heterosexual pairings.
Anyone not mesmerized by the sophistry of academia can see that.
Reply to this commentLinkReport Abusebobbytwotimes, No one is denying homosexuals the ability to marry. Quite simply, all they must do is marry a person of the opposite sex. They choose not to marry by pursuing those of the same sex. There is a simple but important difference between denying someone an inalienable right and that same person choosing to act a certain way.
Reply to this commentLinkReport AbuseMy impression is that Obama personally finds gay marriage morally challenging in the context of his Christian beliefs. His struggle is more of a personal nature.
Constitutionally his beliefs are clear, and as of today have been stated officially.
Reply to this commentLinkReport AbuseThe real issue is ultimately the definition of self-governance. If laws cannot reflect societal norms related to basic human relationships, what can they reflect? The only other answer is that they reflect the ephemeral ideas of whoever has the power and the will to enforce them at any point in time. If the Right stands idly by in response to this, that will essentially be the case.
Reply to this commentLinkReport AbuseRe: Will Antonin
The government already checks your personal medical history before marriage, its called a blood check. So what was that about excessive government involvement? And wouldn't having to check the original birth sex of each partner be even more intrusive?
Re: Hardcastle
I should have been more specific, I meant you have to be able to answer the questions in a way that would survive scrutiny under the equal protection clause.
The article you link to is premised on the fact that straight marriage is morally superior to gay marriage. After Romer v. Evans, moral disapproval cannot be used as the basis for discriminating against gay people. You think there are enough votes to overturn Romer?
If you are so confident that you are right, I am more than happy to wait 50 years and let history decide if your arguments are so much more sophisticated than those used in Loving v Virginia.
And if you believe without any evidence that gay parents are inferior to straight parents, then you are a bigot. I am sorry if you don't like being called that, but it is the truth.
Reply to this commentLinkReport Abusebigot, hater, racist, meanie, po*po*head -- they all mean about the same when offered up by the left. Water off a duck's back.
And much as you may wish it, homosexuals are not the new black. They never will be.
Reply to this commentLinkReport AbuseRomer did not make any such statement; it simply invalidated a law because it was not rationally related to any legitimate government interests.
The Supreme Court had already held that "protecting order and morality" is a "substantial government interest" Barnes v. Glen Theatre, Inc., 501 U.S. 560 at 570.
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