Law and Marriage

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.

And, you base this on what particular section of the Constitution?

If the founders of this nation had ever, in their most pessimistic nightmares, anticipated we would be arguing over what marriage is - let alone which one of us gets to decide what marriage is! - I doubt they'd have bothered to fight and die for our freedom, let alone formulate and debate a Constitution to bequeath to us.

I think they understood, because they studied the history of mankind, that when a nation devolves into such depravity and insanity, no constitution can save it. But we, in our blind obstinance, are like the captain of the Titanic shouting defiantly, with his last drowning breath, "But she's unsinkable!"

If we've come to this, if we think marriage can be put to a vote or left to a judge or legislature, the Constitution is a gun with a clogged barrel: It can't save us, and relying on it to do so is both ignorant and dangerous.

What "same power"?

The power you claim both Congress and states have the power to regulate different aspects of alcohol in your post #21! Article 1 Section 8 does not break down the power to regulate alcohol into sub categories since it doesn't list alcohol at all! Therefore the power to regulate alcohol is completely a power reserved to the states including all the elements you erroneously cite in post #21!

My point is that defining and regulating are two different things.

Bad point. They are not different in the eyes of Article 1 Section 8! They all fall under the power to regulate alcohol which is a right reserved to the states since it is not listed in Article 1 Section 8!

And as far as the states being able to define anything not specifically listed in the constitution as being a federal power, does that mean that states can redefine a mile, a meter, a second, a day, the color blue.

Do you understand the fundamental concept the founding fathers wrote the Constitution for the federal government's powers to be few and defined extending only to external operations scuh as natinoal defense and trade with foreign nations while the states powers are to be numerous and undefined and extend to internal day to day operations? have you read James Madison's Federalist Paper #45 that addresses this very point? To quote Madison:

"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

As I stated before, if the people want to change the Constitution that's fine so long as it abides by the procedures in Article V!

The constitution does not list every single one of them, because it's impossible.

That's exactly right! Have you read the 10th Amendment? Per the 10th Amendment: " 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." The founding fathers purposely referred to any powers not listed in Article 1 Section 8 as "the powers" in the 10th Amendment because they were too numerous to list individually!

Giving states the absolute power to redefine any thing that is not specifically listed in the constitution would be chaos.

You fail to see the forest for the trees! States do not have absolute powers precisely because Article 1 Section 8 granting Congress certain powers prevent the states from having all powers! There was chaos before the Constitution, under the Article of Confederation! The founding fathers wrote the Constitution to eliminate the chaos by delineating federal and state powers! There could only be chaos now if either Article 1 Section 8 did not exist or The Bill of Rights did not exist!

"If the founders of this nation had ever, in their most pessimistic nightmares, anticipated we would be arguing over what marriage is - let alone which one of us gets to decide what marriage is!"

Marriage existed in 1776. It's not a new concept. The Founders could have elected to federalize marriage, but the decided that it was a administrative task best left to the individual states. They were right.

Like several people on this thread, you are no better than the liberals that wish to federal and regulate any number of activities - activities that are plainly unaddressed in the USC. I don't. I want the imperial federal government as small and unobtrusive as possible. If I don't approve of the "marriages" that my state is recognizing, I'll move to another state, but I damn sure don't want the imperial federal government butting into it.

Well, I'm not sure what it says about you, if you can't make the connection that defining something is regulating it. They are indistinguishable.

Well, I'm not sure what it says about you, if you can't make the connection that regulating something is not the same as defining it. The state of NY does not "define" marriages based on cousin or not cousin, it ALLOWS a marriage based on cousin or non cousin.

So, you think a molecule is the same as a legal contract? Did you complete high school?

I know you're just trying to be clever here, but don't put your words in my mouth. I was trying to illustrate the difference between regulating and defining. You just don't want to see it, so you're trying some lame sarcastic nonsense. When you start that, then as far as I am concerned, you have conceded the argument. You want to do silly name calling, do it with someone else. We're done.

"The state of NY does not "define" marriages based on cousin or not cousin, it ALLOWS a marriage based on cousin or non cousin."

Really, you can't be that obtuse. I refuse to believe that.

"I know you're just trying to be clever here, but don't put your words in my mouth.

Not clever, just factual.

I was trying to illustrate the difference between regulating and defining.

Yes, I know. And, you failed. Part of the regulatory process is defining what you are regulating. The Constitution does not empower the federal government to regulate marriage. Therefor, it is a matter that is implicitly left to the states.

Marriage existed in 1776. It's not a new concept.

Precisely. It needed no governmental entity to define it then, nor does it now. It existed and exists as it is, despite our insane refusal to acknowledge it.

The Founders could have elected to federalize marriage, but the decided that it was a administrative task best left to the individual states.

Right again. Administering marriage is a minor task until depraved factions such as sexually-disoriented perverts begin winning converts from among an immoral populace.

When this happens, however, and the very existence of the nation itself is put at risk, desperation will compel patriots to desperate measures. And yes, we'll even sacrifice our Constitution to save our nation.

Nor will you be holding any moral high ground, clinging to the Constitution as the final wave pulls you under.

God didn't write the Constitution, after all. It's not infallible, nor is it a bulletproof shield to protect us from all assaults. It has its limitations, which we are wise to acknowledge. And like every other constitution, those limitations are to be found in the people.

People who play make-believe with marriage can hardly be considered fit for self-government. While you and I would prefer a government "as small and unobtrusive as possible," instead we get one whose job is to control those lacking in self-control.

You fail to see the forest for the trees! States do not have absolute powers precisely because Article 1 Section 8 granting Congress certain powers prevent the states from having all powers!

You are failing to see the forest because you are staring directly and up-close at only one tree. The bottom line is this: There are million and millions of things in this country that the federal government defines. These are the things which unite us as a singe county, and not just a bunch of states that happen to be on the same continent. All of these things are not and cannot be listed in the constitution. There are just too many of them. In real life, you simply cannot allow states to separately DEFINE every single thing not listed in the constitution. You are being like the people who keep screaming "Sarah Quit". Technically, it is a true statement. But when you just keep holding on to it and holding on to it and repeating it over and over, there comes a point where you are using it as a crutch, in order to avoid having to use some judgment and common sense, and to avoid having to make difficult decisions.

"Precisely. It needed no governmental entity to define it then, nor does it now. It existed and exists as it is, despite our insane refusal to acknowledge it. "

Not "precisely". Prior to the existence of the US, many European states, to include England, had adopted the marriage license, or some other official procedure of marital recognition by the state. In fact, many of the colonies had already enacted miscegenation laws at the time of the adoption of the Constitution. But, the Founders found absolutely NO REASON to wade the federal government into this aspect of daily life. They believed it was a matter left to the states.

So, I have no idea why you'd make the ridiculous statement of "precisely".

"God didn't write the Constitution, after all. It's not infallible, nor is it a bulletproof shield to protect us from all assaults. It has its limitations, which we are wise to acknowledge. And like every other constitution, those limitations are to be found in the people."

I have no idea what you're rambling about, but I'm not quite sure I see any reason to ignore the 10th Amendment just because you don't like how some states are regulating marriage.

Are there any other Amendments you'd like to ignore because they don't comport with your personal understanding of "God's Word"?

We aren't a nation governed by preachers and Imams, and their interpretation of their respective holy scriptures. We are a nation governed by laws - federal and state. And, our federal law(s) say that marriage is something plainly left to the states, as it should be.

So even though Article I, Section 8 expressly provides Congress with the power to “establish an uniform Rule of Naturalization” and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”, it does not have the power to define what it means in the immigration law when it uses the term “spouse”?"

With respect to the number of marriages it recognizes, sure.

I'm pretty sure however, that immigration has NOTHING to do with what marriage licenses that California issues.

This case wasn't called Kenya v. HHS, it was called MA v. HHS. See the difference?

In this District Court opinion, the judge holds that MA v. HHS is unconstitutional because of the 10th Amendment.

And this is why the ruling will be overturned. DOMA has no 10th Amendment implications. DOMA does 2 things:

1.) It provides that states are not obligated to recognize same-sex marriages performed in other jurisdictions. While this may be seen as a violation of the Full Faith and Credit clause, it is not a 10th Amendment issue.

2.) DOMA defines marriage as the union of a man and a woman, only "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States". In other words, DOMA defines what the word "marriage" means for the federal government and in applying federal laws and regulations. It does not interfere with the ability of states to define marriage in whatever manner they choose. Once again, no 10th Amendment issue is raised.

You are failing to see the forest because you are staring directly and up-close at only one tree.

I'm starting with the Constitution! What are you starting with?

The bottom line is this: There are million and millions of things in this country that the federal government defines.

The federal government is defined by Article 1 Section 8!

All of these things are not and cannot be listed in the constitution.

It's hard to imagine you are this obtuse as to not understand this has been explained to you by the term "The powers" in the 10th Amendment includes all those powers not specifically listed in Article 1 Section 8.

But when you just keep holding on to it and holding on to it and repeating it over and over, there comes a point where you are using it as a crutch, in order to avoid having to use some judgment and common sense, and to avoid having to make difficult decisions.

You're right once again! I will always hold onto the Constitution and repeat it whenever people such as yourself repeatedly ignore it and cannot grasp the concept of the limited federal government principles instilled in the Constitution. My common sense judgment and subsequent decisions concerning federal and state powers comes from the Constitution. Your perception citing the Constitution based on a Constitutional matter somehow translates into avoidance only illustrates you refusal or inability to address the matter.

Section 319(b) of the Immigration and Nationality Act states, in part, "Any person whose spouse is a citizen of the United States may be naturalized upon compliance with all the requirements of this title ...."

Can we agree that Congress has the power to pass the Immigration and Nationality Act pursuant to Article I, Section 8 of the Constitution, which says Congress has the power to “establish an uniform Rule of Naturalization” and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”?

Or is Congress prohibited from passing this part of the Immigration and Naturalization law because it talks about the spouse of a citizen?

In certain cases, the marriage of the U.S. citizen to the non-U.S. citizen spouse may have occurred outside of the United States. So the marriage being looked at occurred under the law of a foreign jurisdiction. And you still contend that Congress does not have the authority under the Constitution to define, for purposes of Federal law, the terms "marriage" and "spouse"?

"Or is Congress prohibited from passing this part of the Immigration and Naturalization law because it talks about the spouse of a citizen?"

You're ignoring relevant case law in this regard as it relates to the Tenth Amendment. Tauro didn't. He cites United States v. Bongiorno and then explains...

a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.

Tauro asserts that this particular case meets the requirements laid out in Bongiorno. I think that assertion has merit.

Your particular hypothesis is fine in and of itself, but it's not relevant to this discussion because immigration regulation doesn't - by definition - doesn't regulate the "states as states", now does it. The 10th Amendment argument works here because it meets the test set-forth in Bongiorno. Your hypothetical doesn't (in fact, it doesn't meet any of the tests), ergo it's not relevant.

Put another way, DOMA usurps the sovereignty of the state. The application of immigration rules as defined by the federal government, does not as immigration is an activity that is left plainly and solely to the federal government, not the states.

I've been a practicing attorney since 1983.

Ah! That would explain your silly sophistry tactics. I have no interest in bandying clever quips and verbal tricks. Save it for your courtroom sparring matches.

If you think a nation stands or falls based on its laws, you've been too deep in your profession for too long. But of course, to the man with a hammer, the whole world looks like a nail. This proverb seems to be nowhere more true that among lawyers.

You can't argue America out of trouble, because the Judge who made the natural law which governs nations is not swayed by clever arguments and sophistry. Ignorance of the natural law is no excuse - particulary when those who crafted, debated and ratified the Constitution informed us of its limitations.

So DOMA is legitimate as applies to immigration law because that is a federal power per the constitution.

But DOMA is illegitimate when MA wants to distrubiute federal monies via Medicare and Medicaid to “spouses” per it’s definition of marriage rather than the federal definition?

Personally, I think that’s wrong. If MA wants to distribute additional funds according to their definition of marriage they can use their own damn money, otherwise, everyone in the other 49 states is being forced to support MA’s definition to the detriment of their own definition, their citizens and of the public purse and without a representational voice in the outcome.

Of course, if the FedGov hadn’t established these arguably unconstitutional social welfare programs under the figleaf of general welfare, this mess would never have come about.

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