Given the media’s one-sided highlighting of Republicans who have played against type by supporting same-sex marriage or opposing the federal Defense of Marriage Act, I figured that I would call attention to the fact that Judge Chester J. Straub, a Clinton appointee to the Second Circuit, wrote an outstanding opinion (a dissent, alas—beginning on the 44th page here) in the DOMA case now under review in the Supreme Court. Some excerpts from the introduction to his dissent:
The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so.…
The public policy choice set forth in DOMA is to be made by Congress, not the Judiciary. In DOMA, Congress has set the boundaries for marriage—all in keeping with American society’s historical view of a marriage as being between a man and a woman. This is not the first time the Congress has signaled its intentions in various definitions of eligibility for federal purposes as to children, marriage, and domestic relations. These have at times conflicted with state laws but the federal law has always prevailed for federal purposes.
The Congress had the benefit of advice from the Department of Justice that DOMA is constitutional. The Congress decided to codify what had always been implicit in federal law. The history of federal legislation in respect of the meaning of marriage or spouse was never even suggested to mean anything other than the lawful union of one man and one woman for all federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress explicitly sought to recognize for federal purposes the significance of our historical understanding of a mainstream value, joining the biological component of the marriage relationship to the legal responsibility of rearing the offspring of that union. The Congress referenced its intention to sanction, for federal purposes, society’s desire to approve the man and woman long term union as the ideal by which to beget and rear children. Indeed, state high courts—as in New York—have credited their legislature’s rational decisions to promote the welfare of children via opposite-sex marriage laws. Further, Congress has articulated, as another legitimate reason for DOMA, that the federal fisc as well as America’s desired right to equitable distribution of benefits should not be based on the particularity or peculiarity of any state’s definition of marriage, but rather the federal government is entitled to codify a single definition of marriage as historically understood.
The Congress was uniform and consistent. And, it chose not to rush ahead with a redefinition at a time when all the states utilized the traditional definition of marriage. It chose to let the issue evolve within American society. The Congress accomplished its task in a manner which continues to respect the principle of federalism. The states remain free to define marriage as they choose, pursuant to DOMA. And, forty-one of our states continue to define marriage as DOMA does. The totality of the foregoing is sufficient to hold DOMA constitutional under the rational basis standard. Even the majority opinion, while ultimately holding DOMA unconstitutional under a higher level of scrutiny, appears to imply that DOMA passes rational basis review.
My final observation relates to the Attorney General’s current position. His assertion that sexual orientation is a suspect classification and that DOMA fails to pass strict scrutiny is recently minted, and is contrary to an established body of cases to the contrary. The Attorney General’s position is unprecedented in its departure from the Department of Justice’s long-standing policy of defending federal statutes even if the President disagrees as a matter of policy.
At bottom, the issue here is marriage at the federal level for federal purposes, and not other legitimate interests. The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity. Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President. It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress.