Mr. Holder's arrogance remains breathtaking.

>"Holder then rakes over the coals the “moral disapproval” that was expressed in the “debates and discussions” over DOMA regarding “intimate” same-sex relationships."

Because in these United States the only people whose "moral disapproval" counts for anything are the nine members of the Supreme Court. They not only may enact laws enforcing their own "moral disapproval", that's their entire job! It says so right there in the Constitution.

(Yes, that was sarcasm)

"The silver lining is that the way has now been cleared for a real adversarial process. The law enacted by Congress and the views of the American people finally will have a champion in court."

IMO, this is the real story. Our army is no longer commanded by Benedict Arnold.

To Rocket J Squirrel: No, you have missed nothing. All laws must have a moral basis, or else it would be unjust to punish lawbreakers. Your only mistake is in taking the detour on "if I'm the only one injured". That's not the point; you may be the only one hurt, and in fact, in most cases of speeding, no one is. It is the endangering which is outlawed. The actual harm adds to the offense (and to the penalty), but speeding laws are essentially about threats to the public safety. (Admittedly, some laws are admistrative in content, but the ultimate justification must be moral.)

How's the weather in Frostbite Falls, with all this warming?

Quick correction: you say that Holder claims the distinction underlying DOMA is "irrational." Not so, as far as I can tell. He explicitly says that the government defendend DOMA in circuits holding that sexual orientation discrimination be analyzed under the rational basis standard, because the administration could find reasonable and rational arguments to support it.

In the Second Circuit, which has no such precedent, the administration is free to argue for the level of scrutiny it feels that sexual orientation discrimination deserves. By arguing for heightened scrutiny, the admin isn't saying sexual orientation discrimination is "irrational," they're saying a court needs to look at more than whether or not it could be rational and instead focus on whether it's connected to an important governmental interest. He does conclude, as does Obama, that DOMA fails this test.

But saying that a higher standard than rational basis is required is emphatically not the same as calling the arguments in support of DOMA "irrational." It's that the rationality doesn't end the inquiry.

Rocky and George are correct.

EVERY law is, in the final analysis, a reflection of morality, and morality only has meaning by reference to natural law, which is to say the law of nature's God. Any other analysis eventually leads to Nietzsche.

The pretense by our leading jurists and political leaders that this is not so is the reason for the muddle of confusion that exists in our current jurisprudence.

For example, the law says one may not murder another person. This is an expression of the moral principle that every human life is valuable. Every human life has value because of the fact that EVERY human is created in the image of God. There is no other coherent moral basis for a law proscribing the murder of any other person.

Belief systems which deny this fact can and do have other laws. A Nazi law might say (or be de facto enforced such that) it is illegal to murder anyone except Jews. A Marxist law might say (or in practice be) that one can murder landlords or Kulaks or anyone who thinks the wrong thoughts. Hutus would say you can murder Tutsis, and vice versa.

But the reason, the ONLY reason, such Nazi or Marxist or tribal laws are immoral is because they contravene natural law, i.e., the law of God.

Which is not to say our legal system needs to be a theocratic system. But it MUST recognize that the ultimate moral basis of our society and our laws is the Judeo-Christian underpinning of the Western world. This was always clearly understood in our jurisprudence until the progressive era.

One of the basic moral principles of Judeo-Christianity is compassion, and compassion leads to tolerance.

So a proper moral perspective would be that while homosexuals should not be persecuted, neither should society give its imprimatur of approval on homosexual behaviour. And this moral perspective is what should inform our laws.

If we abandon our only moral basis, then we lose the ability to make distinctions.

If "equal protection" says the law must not deny recognition of "marriage" to two men if the law recognizes "marriage" of a man and a woman, then where does "equal protection" allow limitation of such a relationship to two people, and not three?

So we see that abandonment of a moral perspective from the foundation of our jurisprudence inevitably leads to mere arbitrary distinctions.

There is a silver lining. Now that this precedent has been set I see no reason why a Republican president would have to defend constitutional challenges to Obamacare. Who needs repeal now?

Chuck,

You present some quick and easy shoot from the hip arguments that everyone hears when they first start following the marriage debate. I don't mean to sound snobby, but I'm just saying it's first round stuff.

Your arguments boil down to this: if someone (or some state) decides to redefine what the word marriage means, then that new definition is now supreme. And any subsequent redefinitions likewise trump whatever the next definition is. Society only needs to keep up with the business of rewriting everything from family law, to church/state separation, to the foundation of most known political philosophy. ( I don't mean that to sound silly--the Iowa Supreme Court said in their decision that the court can and should redefine marriage even one person believes we should do so.)

If what I just wrote has you thinking "what the...?" I'll just respond by saying "welcome to round 2." For further reading:

1) This is a great place to start.

2) This discusses the connection between gay marriage and a more totalitarian state.

3) This shows how the control and redefinition of marriage has been the ambition of the state since Rousseau.

George Les,

You write "I must disagree with the implication that our moral system is based on Christianity. Rather, Christianity presupposes it. Natural Law, per se, is simply the agreed moral code you find common to mankind. At least, that is what it is, empirically."

Christianity presupposes natural law. Agreed. Christ even said as much. And I mostly agree with the rest, but I will only quibble and say that our agreed moral code is inescapably Judeo-Christian because that is the historical background of 80-95% of our nation's population throughout history (regardless of one's personal religion, including atheists). Natural law cannot be "an agreed upon moral code" as that would be positive law (law created by man), or what Rousseau called "the General Will." That's quite a different proposition than the idea that Natural Law is something created in us by God. As such, Natural Law isn't subject to the General Will at all. Of course that's what Jefferson meant by the term "unalienable rights."

Yes, every society has a natural law conception of marriage as the foundation of procreation and family. But beyond marriage, there are radical notions of right and wrong across the globe. When I was around 22 years old i lived in Japan for a couple years and like many Americans living and working with the Japanese, I was astounded by the deer-in-the-headlights reaction of so many Japanese to moral discussions with Americans.

I can't agree more with your overall point, however, especially, "It is not the case that we are talking about some natural institution, homosexual marriage, which was running along just fine, until the Church suppressed it."

My point was that taken by Rocket J Squirrel, that the moral law is not derived from Christianity. Enriched, yes, but Socrates & Confucius knew right from wrong without benefit of Sinai.

Now, I will grant that at any particular time of place, you will have abberations. Every society has a collective blindness on certain points, which we can see when looking at other cultures, or our own past. But there remains a core of moral law which is, in fact, common to mankind. They all have prohibitions on murder, theft, adultery, etc. That they draw lines in somewhat different places, is of some interest, but does not obscure the broad agreement.

I recommend C S Lewis on this point, he develops it better than I can.

Further, if you reject utilitarian appeals (so do I), and appeals to morals (which I do not), on what basis do you justify the state's intervention in anything? Legal positivism of the narrowest sort (the law is whatever the state says it is)? Since state intervention is always, in its nature, backed by force, how can that be justified.

Second, I was not "Demanding a utilitarian justification for the state interest in marriage". My point was this: advocates of SSM premise their attacks on a purely secular notion of the state, & the good for man. It is therefore useless to attack them with premisses they deny; you cannot debate that way. You must either agree to debate the underlying assumptions of secularism vs Christianity, thus putting aside SSM indefinitly, or debate SSM from their premises, for the sake of argument.

I am all in favor of the former approach, I find it more interesting than debating positive law. But the fact is that SSM is not going to go on hold while we debate the Ontological Argument or the Sacramental System. It has to be addressed now, and in a way which is viable in our society. That means no appeal to religion, none to traditon, and even that an appeal to natural law must be derived, point by point. I do not think this is as it should be, but as it is.

My point is that the secularist argument for SSM fails, by any standard any conservative can accept, no matter what his hyphen. I put this more fully in a post a bit up the way, but it all comes down to this: the only secular justification for the state's concern for marriage is procreation. If it did not lead to childbirth, it would make sense, on contemporary assumptions, simply to have no state involvement, at all. I reached this when I realised that libertarians, in arguing for SSM, were being false to their own position. Rather than reducing the degree the state interferes in human relations, they want to widen its scope.

I don't think I ever mentioned the 14th amendment.