Judge Joseph Tauro, in the federal district court in Boston, took it upon himself to strike down the 1996 Defense of Marriage Act (DOMA). With that stroke he would remove one of the key barriers standing in the way of imposing same-sex marriage on the nation as a whole. And it would be done through the power of judges alone, without the need to agitate the community in any political controversy, and without citizens or legislators needing to do such unseemly things as voting.
Judge Tauro accomplishes this task by essentially presupposing the most decisive points that he should have been obliged to establish in an argument. A good third of the judge’s opinion was spent in showing all of the benefits that would be denied to spouses of same-sex couples in the federal government. They would be denied those benefits simply because Congress, which has the sole authority to legislate the federal code, stipulated that every reference to marriage in that code would be a reference to a legal union of a man and a woman. And yes, the consequence of that stipulation in the meaning of marriage does mean that no companion of the same sex can have the standing of a spouse to receive benefits in the form of retirement, pension, medical care, to the extent those benefits are conferred on spouses and members of the legal “family.”
But to compile the litany of benefits foregone is not to make the case that they have been withheld wrongly, without justification. An argument must be supplied. Judge Tauro wanted to argue that the withholding of benefits was illegitimate because the distinction between a marriage composed of a man and a woman, and a marriage composed of people of the same sex, is an illegitimate, unjustified distinction. For Judge Tauro that distinction treats differently people who are in the same situation — i.e., people who claim to be married, as indeed they may claim right now under the laws of Massachusetts.
Up until the early 1990s, when judges started acting as engines to install same-sex marriage, it did not seem to occur to most people that marriage meant anything other than the marriage of men and women. Judge Tauro’s affectation is to have us believe that it is quite as natural and legitimate now to assume that any couple of the same sex would be as plausible a candidate for marriage as the coupling, more familiar, of a man and a woman. One would hardly know, from Tauro’s opinion, that there are compelling arguments, grounded in nature and moral reasoning, that call into serious question the coherence of any arrangement that would call itself “marriage” while detaching itself from the union of a man and a woman. Tauro might have serious arguments to make against that case, but that argument has to be made. This late in the seasons of our experience, the overthrow of the traditional understanding of marriage is an act still sufficiently momentous that it deserves to have the reasons assembled to justify itself. Tauro simply begins by presupposing the legitimacy of same-sex marriage and the “irrational prejudice” of anyone who would deny it. As Bertrand Russell once said, presupposing has every advantage over demonstration that theft has over honest labor.
But from that sleight of hand, Tauro fell into arguments that virtually turned on themselves and self-destructed. Since he could see no legitimate ground for denying same-sex marriage, he could recognize no legitimate purpose in a statute that was meant to shore up marriage, or to prop up the states in preserving marriage against the move of judges, state and federal, to strike down the traditional laws of marriage. Hence Tauro could twist into falsity the facts that were before him: He could simply declare that Congress enacted the Defense of Marriage Act “for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves.” But that has things quite backward: Congress did not act for the purpose of inflicting disadvantages on anyone. It acted for the purpose of firming up the defense of marriage in the law, and that defense simply had the ancillary effect of withholding, from same-sex couples, the benefits that flowed to couples truly married.
To the judge, the Act was irrational and arbitrary because Congress had no legitimate purpose in acting upon marriage. As the judge labored to point out, the laws of marriage and the family have always been anchored in the laws of the states. (Except, of course, when those laws have been struck down by federal courts.) For Judge Tauro, the subject of marriage forms no legitimate subject for the federal government to reach — and yet the federal courts may reach same subject in many phases. The courts have struck down the laws that bar marriage between the races, or the decisions that assign the custody of children on the basis of race. Once again we have that most curious of tendencies, to pretend that the federal courts are somehow not part of the federal government. The same people who tell us that the federal government should have nothing to do with abortion are the people who nevertheless want the federal courts to sweep away the laws of the states as they impose and preserve the widest right to abortion.
The hard fact of the matter is that marriage has been part of the very matrix of the law ever since there have been laws. And the laws of marriage were firmly planted in the separate states, until the courts began testing those local laws against the principles established in the fundamental law of the Constitution. But if the courts can articulate rights under the Constitution, the legislative branch must be able to vindicate the same rights by legislating. There is no way that Judge Tauro can remove from Congress the authority to protect marriage without removing the subject of marriage from the federal courts as well — and removing them then, mercifully for us all, from his own hands.
But of all those things that Judge Tauro has conveniently screened from his notice, the most sublime must surely be this: What has caused Congress to act, in the first place, in a field so unfamiliar to the works of Congress? Anyone with eyes to see would recall at once that Congress was forced to act because of the aggressiveness of unelected judges moving on their own to install same-sex marriage, even against the force of opinion in their own states. And if local judges were summoning the nerve to put across this minor revolution in the laws, it was predictable that federal judges would take the movement to new heights of moral pretension and audacity. Congress, in passing DOMA, was not trying to grab power in new domains. It was seeking rather to counter the aggressive acts of judges, unelected and unconstrained, and to preserve, for the people, that ultimate right to determine the Constitution under which they were governed.
– Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and was one of the architects of DOMA.