OPPOSITION TO MARRIAGE AMENDMENT BASED ON HYPOCRISY AND CYNICISM
By Don Feder
The nation just witnessed the dreary spectacle of the most powerful deliberative body in the world weighing the most important social issue of our time – an amendment to the U.S. Constitution defending traditional marriage –in a debate dominated by hypocrisy, cynicism and a concerted effort at reality-avoidance.
Democrats – and half a dozen Republicans – wouldn’t even allow the amendment to come up for a vote. A move to cut off a filibuster (60 votes needed) failed 49 to 48.
“A vote for this amendment is a vote for bigotry,” slurred the senior Senator from Massachusetts. In so saying, Edward Kennedy labeled all 8 U.S. Catholic cardinals – leaders of his Church – bigots, not to mention that notorious hatemonger, Benedict XVI (who also opposes Brokeback Mountain marriages).
The party of perversion was in rare form. I mean perversion of the truth, not the other kind of perversion – which they also favor.
Howard Dean had a new scream: “Democrats are committed to fighting this hateful, divisive amendment.”
What about not allowing a brother and sister to marry, or a man to marry four women, or a teacher to marry her 13-year-old student, or a man to marry a horse – is that hateful and divisive too, Governor?
The party whose last president didn’t know what the meaning of “is” is, — the party that condoned Clinton’s perjury — mobilized its full armada of deceit, deception and slander to misrepresent an amendment which is the essence of simplicity.
In pushing the amendment, the president and Republican congressmen were “playing politics” (i.e., using an issue for political advantage) they whined, something Democrats would never dream of doing – except with Social Security, gun control, abortion, hate-crimes legislation and any other issue on which they decide to pander to part of their constituency.....
http://www.donfeder.com/articles/0606MPAvote.pdf
While he was a candidate for the U.S. Senate in 2006, Obama supported the repeal of DOMA. He was also opposed to DOMA after his election to the Senate, during his campaign for president, and after his election as president. However, when the federal district judge declared DOMA unconstitutional, Obama's administration found itself in the unenviable position of having to defend a law with which they disagree. Of course, this leaves supporters of gay marriage, a significant portion of the Democrat's political base, outraged. DOMA passed Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House. Also, at an average rate of 67.5%, voters in U.S. states have gone 31-for-31 in their efforts to ban gay marriage. (Thirty states have passed constitutional amendments banning same-sex marriage.) In other words, traditional marriage is about as popular with Americans (if not more so) as the Arizona law. Thus, gay marriage is as toxic an issue for the Democrats as immigration. Once again, Obama and the Democrats face a catch-22. ..... Interestingly, gay marriage and immigration are very similar yokes for the Democrats to bear in the upcoming elections. In early July, just as with the Arizona law, a federal district judge declared unconstitutional the federal Defense of Marriage Act (DOMA). Also, as with the Arizona law, DOMA (and, for that matter, traditional marriage) is very popular with Americans.
Interestingly, while judges in these cases refer to the federal issue of "equal protection under the law" to reject the Tenth Amendment argument for voters rights to states' constitutional amendments - the gays in the states they are suing or using legislatures to accept the "same sex marriage" are utilizing Tenth Amendment (states' rights) to invalidate federal DOMA law. They are having it both ways:
Tenth Amendment Jurisprudence Serves to Invalidate DOMA Provision (MA) - Gaypatriot.net, 2010 July 09, by B. Daniel Blatt
Now I like the result because I believe that same-sex partners should be allowed Medicaid benefits, the issue in this case. And those seeking those benefits had sought the protections of marriage. But, I feared it may have been based on shady constitutional logic where the judge (or justice) found his justification in illuminations refracted from reflections in the charter’s penumbrae. Thus, when I looked into matter, I was delighted to learn that Judge Tauro had rooted his decision in the Tenth Amendment. That provision reads, “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.” So, favoring a federal government of limited powers, I think he’s on pretty solid ground. ..... When I first read U.S. District Judge Joseph Tauro ruled that portions of DOMA were unconstitutional because the legislation “interferes with the right a state to define marriage“, I wondered which provision in the federal constitution he used to justify his ruling.
We can go from court to court to fight these ideologues in black robes, but at some point in some state (like in CA) they'll tell you that you have no rights and no representation because you have no "standing" i.e., "shut up and take it":
DOMA and the 10th Amendment -OutsideTheBeltway.com, 2010 July 09, by James Joyner
The arguments of Judge Tauro’s two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government’s taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals. ..... Yale lawprof Jack Balkin, a gay marriage supporter, nonetheless thinks yesterday’s ruling by a federal judge declaring the Defense of Marriage Act unconstitutional is likely to collapse on appeal.
Judge Tauro uses the Tenth Amendment – much beloved by conservatives – to strike down another law much beloved by conservatives – DOMA. There is a kind of clever, “gotcha” element to this logic. It is as if he’s saying: “You want the Tenth Amendment? I’ll give you the Tenth Amendment!” But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness – which is certain to twist both liberal and conservative commentators in knots – I do not support the logic.
When something like marriage - while used extensively in laws and courts and tax code - is not specifically "defined" it allows all kind of mischief and redefinition and sophistry by lawyers and judges... When it's taken beyond legal sophistry to the point of systemic abuse and breaking of legal system to accomplish certain political goals and agenda, it's time to take actions available to citizens by constitution. Saying "It doesn't affect me now" and "I am for federalism" doesn't even push the can down the road, it pushes it into Never-Never-Land.
That's the only reason there was a need for DOMA and why now there is need for the national constitutional amendment - simply to "define back" marriage again as it had been understood to be defined since the beginning of the United States. Marriage is not and should not be about Medicare or Medicaid benefits.