Skip to comments.Law and Marriage
Posted on 07/13/2010 9:47:37 AM PDT by Kaslin
A federal judge in Boston has ruled that the Defense of Marriage Act (DOMA) passed by Congress (427 members voted in favor) and signed into law by President Clinton in 1996 cannot take precedence over a Massachusetts law allowing same-sex marriage. The ruling again raises serious questions about the origin and purpose of law. But before we get to that larger question, the "logic" of Judge Joseph L. Tauro's ruling should first be examined.
Judge Tauro's decision flies in the face of what the federal government has claimed and is claiming in at least two other significant cases. In 1973, the Supreme Court struck down all state laws restricting a woman's right to have an abortion. In its lawsuit against Arizona's new immigration law, the Department of Justice claims federal law (which the feds are not enforcing) trumps state law.
So let's see: state laws are fine when they promote the interests of the ruling liberal and cultural elites, but they are to be ignored, or overturned, when they do not promote the objectives of the ruling liberal and cultural elites. Is that it? How can the federal government have it both ways?
A New York Times editorial says of DOMA "There is no rational basis for discriminating against same-sex couples." Really? Has the newspaper forgotten the federal government's "discrimination" against Utah when it forbade the territory from entering the Union until it outlawed polygamy? In 1878, the Supreme Court declared in Reynolds v. United States that polygamy was not protected by the Constitution. If the federal government could reject polygamy then as a means of promoting the general welfare, why can't it block attempts to redefine marriage now? If marriage is re-defined by courts, what is to stop anyone from declaring a "right" to any relationship they wish to enter and demanding "equal protection" under the Constitution?
Now to the larger question of law, which is also being re-defined. During her confirmation hearings, Elena Kagan said she loved the law. Too bad no one asked her which law she loves and what is law's purpose? Law is meant to conform humans to a standard that preserves the cultural and moral order. The purpose of government is to "secure" unalienable pre-existing rights about which Thomas Jefferson wrote in the Declaration of Independence (a document Kagan dismissed as irrelevant to the Constitution, though it is the Constitution's moral and philosophical foundation). Government is not supposed to create new rights like national health care, or same-sex marriage.
The Times editorial dismisses the overwhelming approval for DOMA as a "wedge issue" during an election year. In fact, it reflected the principled position not only of a vast majority of members of Congress, but also the position of the public, which has almost universally rejected attempts to legalize same-sex marriage. In 2004, 11 states had ballot measures preserving marriage as between opposite sex couples. All passed. In 2008, three states had gay marriage ballot initiatives. Two passed. In California, a measure to overturn the State Supreme Court's earlier 4-3 decision upholding the constitutionality of a legislative ban on same-sex marriage was approved by 400,000 votes, or 52 percent of those voting.
Marriage re-definers demand acceptance for their position that morality, as well as right and wrong, are to be determined by polls. If polls show the public disapproving of behavior the elites favor, the elites ignore majority opinion and seek to shove it down our throats anyway, because, you see, only they can be right. The rest of us have the equivalent standing of 1950s segregationists. Anyone arguing for tradition is branded a bigot, a label that is supposed to end all discussion, while the labeled one is exhausted trying to prove a negative.
Judge Tauro's ruling will likely be overturned on appeal, but that won't stop the marriage re-definers. In a morally exhausted society, they just might succeed. Polygamists were 130 years before their time.
I still have to question, what in the US Constitution grants the federal government the power to define marriage? Outside of adding an amendment that specifically addresses this topic, I would say there is nothing there that permits it.
So, the federal law does not take precidence?
The people in Arizona now have questions about their immigration law and Obama’s lawsuit.
This post should get some interesting replies.
Obviously the people on the left who bring these lawsuits that attemtp to stymie the will of the American people and their legislatures, go forum shopping for judges. Is there a website that tracks the federal judges, and how many times they are overturned by the Appellate and/or Supremes. The only way to stop this is to make an example of the most egregious..that is pick one who blantanly flies in the face of the law and the Constitution, and impeach him/her..
DOMA is unconstitutional but not for the reason Tauro cites. Regulating marriage is not an enumerated power specifically listed in Article 1 Section 8 of the Constitution. Therefore that is a right reserved to the states per the 10th Amendment.
Section 2 of DOMA reads, "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
The church just needs to invent a new word to describe a church-only ceremony between one man and one woman. Let the social engineers do whatever they want with "marriage" - it won't matter any more.
And you are correct. To a true constitutionalist, there should be NO provisions for marriage.
It is part of a strange legal and tax system - - it's in a mass that is impossible to untangle.
“I still have to question, what in the US Constitution grants the federal government the power to define marriage? Outside of adding an amendment that specifically addresses this topic, I would say there is nothing there that permits it.’
the common law has always permitted the federal government to recognise the definition of marriage. You are correct that there is nothing in the constitution that gives the federal government the power to define marriage. They can’t change it, they simply enforce the definition.
States do not have the power to redefine marriage to suit themselves. What was sauce for Utah is sauce for Massachusetts.
While there are some significant problems in both of these MA judicial opinions (there were two cases by the same judge, not one), the Judge's assertion of the 10th Amendment rational in one of those cases is not without merit. Social conservatives don't like this, because they don't like gay marriage or civil unions in any state, so they want to the Federal government to put the states under its thumb. I don't.
This is not a federal issue, it's a state's rights issue. States should get to decide who they do or don't issue marriage licenses to, so long as those guidelines don't violate constitutional protections, like we see in Loving v. Virginia.
Thomas completely ignores the 10th Amendment argument because its too complicated and cumbersome to deal address while still allowing him to achieve his goal. That's intellectually dishonest, and patently un-conservative. Conservatives can't just be for state's rights when it benefits their ultimate goals. .
No, Tauro makes that very assertion in Massachusetts v. HHS, which was one of the two companion suits that he issued his opinion on.
The word 'covenant' already exists.
"Let the social engineers do whatever they want with "marriage" - it won't matter any more."<
That word is 'contract'.
Boy, you and your "sauce". You still haven't cited specifically where this "sauce" may be found.
If states "don't have the power to define marriage", why do some states - like NY - allow 1st cousins to marry, but other states like AR and KY, they can't? How about that "sauce".
You completely miss the point of DOMA. Congress was not trying to prevent any state from allowing homosexual “marriages”. It was trying to defend the prerogative of other states to not have to recognize such “marriages” under the guise of the Full Faith and Credit clause (U.S. Const., Article IV, Section 1). DOMA protects states rights, it does not infringe them.
Democrat hypocracy at it’s finest.
Good. Now, can we get the federal government to take its fungus-crusted foot off of the rest of the States’ rights?
No. I believe you don't fully understand DOMA. There are several sections of DOMA. Thus far, only Section 3 has been found to be unconstitutional. Section 2, which is the section that deals with the part you've described, has been left alone.
This federal judge is very crafty. And if you look beyond the immediate core issue, he may end up being on the right side of history.
There is federal jurisdiction, and there is State jurisdiction, and there is the Rights of the People, and the three are not supposed to overlap.
If there ever was a humdinger of a legal debate, this is it.
Cal Thomas cited Roe v. Wade. It was a case of the SCOTUS deciding that States could not intrude so far into the Rights of the People. Whether or not you agree with it, this was the essence of what they *said*.
Importantly, this goes back to the 14th Amendment, the Due Process clause, that says that the Bill of Rights applies to the States. That is, that the States *cannot* violate the Bill of Rights with their citizens.
And this is a critical issue *right now*.
Justice Thomas, in his concurring opinion to MacDonald v. Chicago, wrote an amazing dissertation to revitalize the 14th Amendment. It is a masterwork, and will dominate legal textbooks in the future.
Justice Thomas’ argument essentially agrees with Roe v. Wade, except that the States *cannot* violate gun rights. In other words, two “rights of the people” that the States cannot interfere with.
At the *same* time, the individual States are in an uproar, forming blocs against federal power usurping State powers. This is the *second* side of the triangle.
What this federal judge has said is that marriage is under State jurisdiction, not federal jurisdiction. Even if every congressmen, senator and the president want it to be under federal jurisdiction. And this is a powerful States’ Rights ruling in the future.
So, the bottom line: The courts say the feds can protect the people from the States; and the courts have also decided to protect the States from the feds.
The DOMA itself is just the surface of this fight. And the end result is going to be impressive.