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.
And the states do have the right to regulate marraige, the same as they can regulate the production, distribution, and consumption of alcohol. It doesn't mean that states have the right to REDEFINE the chemical composition of an alcohol molecule. There are some things that the states can define inivdually, but there are some things the we need define as a nation; one single, common definition. Marraige is one of those things.
DOMA defines marriage in federal law for the purpose of administrating federal law. Things like social security beneifits, federal tax filings, federal employee benefits, etc.
If you think the FedGov is expensive now, wait until they start dishing out money to the domestic partners of Tom, Dick and Harry.
There are valid socio-cultural and economic reasons for limiting marriage to biologically complentary units (men-women), one being that the intact biological family unit is actually the most cost effecient method to rearing the next generation of citizens.
The homosexual lobby will blather on about justice, fairness, bigotry, yada yada, blah, blah, blah, but at the end of it all the stubborn fact is that the natural union of man and women rearing their biological offspring is the best, most efficient and least expensive (to society) method of rearing children.
Everyone who pretends differently is trying to sell something, and it ain’t the truth.
No, it didn't. That wasn't the question that was put to the test in Reynolds. I've already cited for you the relevant the section of Reynolds, but, it appears you've chosen to ignore it. I'm not sure if you don't understand how to read legal opinions, or what. From Oyez, on this very matter...
Facts of the Case: George Reynolds, secretary to Mormon Church leader Brigham Young, challenged the federal anti-bigamy statute. Reynolds was convicted in a Utah territorial district court. His conviction was affirmed by the Utah territorial supreme court.
Question: Does the federal anti-bigamy statute violate the First Amendment's free exercise clause because plural marriage is part of religious practice?
Conclusion: No. Chief Justice Morrison R. Waite, writing for a unanimous court, held that the statute can punish criminal activity without regard to religious belief. The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief.
And yet, states do define marriage. Again, some states allow 1st Cousins to marry, others do not. In your example, there is some universally understood definition of "marriage". Does you definition allow 1st Cousins to marry, or does it not?
Section 3 of the Act, which is codified at 1 U.S.C. § 7, simply defines the terms “marriage” and “spouse” for purposes of federal law. For example, federal law provides for benefits to a surviving spouse of a deceased military member. So you’re saying Congress has no authority under the Constitution to define the term “spouse” for that law?
How does that refute my position? Clearly if the federal government can have the power to outlaw bigamy, they are forcing Utah to conform to that common law definition of marriage between one man and one woman. Reynold’s was a test of that principle.
Read on, see what that same opinion says about the common law definition of marriage and the requirement of the United States to uphold that definition within her jurisdiction.
“And yet, states do define marriage. Again, some states allow 1st Cousins to marry, others do not. In your example, there is some universally understood definition of “marriage”. Does you definition allow 1st Cousins to marry, or does it not?’
They are permitted to determine the age of majority, are they not?
There’s a legal distinction between changing the particulars, (age, consanguinuity, and race), from the definition, (bigamy, polygamy, and homosexuality).
No state has ever, in the history of the United States been permitted by the federal government to endorse bigamy. Why?
“And the states do have the right to regulate marraige, the same as they can regulate the production, distribution, and consumption of alcohol. It doesn’t mean that states have the right to REDEFINE the chemical composition of an alcohol molecule. There are some things that the states can define inivdually, but there are some things the we need define as a nation; one single, common definition. Marraige is one of those things.”
Thank you. That’s a phenomenal analogy.
First, I'm not sure who "they" is. And, I'm not really sure what that has to do with this discussion.
You mean: change the meaning of marriage from it’s historical usage in this country......and defy Natural Law.
Nothing but Marxism....change the meaning of words. Congress should have NO power to change the meaning of words in the dictionary or the meaning of the Constitution without an amendment to the Constitution.
The Truth is that our nation was based on Natural Law and God’s Laws and they are trashing Natural Law which can not be done unless we dump our Constitution and are no longer the USA.
Wow, this is just going over your head, isn't it.
Reynolds was a question about 1st Amendment protections with respect to the question of plural marriage - or any other illegal act. The central legal holding in Reynolds was that the 1st Amendment was NOT an allowable defense for committing a crime. That's it. And, that has NOTHING to do with MA v. HHS.
In this District Court opinion, the judge holds that MA v. HHS is unconstitutional because of the 10th Amendment.
Reynolds and MA v. HHS are decided along ENTIRELY DIFFERENT legal principles. Reynolds has NOTHING to do with MA. v. HHS. One is a 1st Amendment case, and the other is a 10th Amendment case.
Since the right to regulate marriage is not specifically delegated to the US Federal Government by the USC, yes, that is EXACTLY what I'm saying. The 10th Amendment could not be any clearer.
Just because Congress passes a law and asserts a right to define something, doesn't mean it's constitutional.
The logic in your last sentence is essentially claiming Congress and states each have a partial right to the same power. That couldn't be more of a misconception.
Not a misconception, a mis-reading (by you). What "same power"? My point is that defining and regulating are two different things. 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. There are a zillion and one things that the federal government defines for all states. The constitution does not list every single one of them, because it's impossible. Giving states the absolute power to redefine any thing that is not specifically listed in the constitution would be chaos.
What an absolutely fallacious argument. States don't define measurements. But, Art.1, Sec. 8 does cede that authority to the Federal government.
Moreover, a mile in KY is a mile in NY. BUT, a marriage in NY is not a marriage in KY. Why? Because in NY, a marriage may be between two first cousins, but in KY it may NOT be a marriage. See? One word, "marriage", with two separate and distinct definition in two respective states.
To make some ridiculously fallacious argument that states can't define the terms of contract between two parties because they can't define weights and measurements, is intellectually vacant.
Allowing or not allowing cousins to get married is regulation, not definition. The definition of marrage is one man, one woman. As far as age, familial association, and race, those are details which are regulated. As far as the first cousin thing goes, if they are of a different sex, then it's a state issue. If they are of the same sex, it's a federal issue, because they do not fit the federal definition of marraige.
That is some tortured logic. The definition of marriage in NY is a union between a man and woman who may be first cousins. The definition of marriage in KY is a union between a man and a woman who may not be first cousins. The federal government recognizes both marriages, equally.
If California wants to recognize marriage between just two people, irrespective of gender, and you live in California and find that definition detestable, exercise your freedom to move, and leave the state.
"As far as the first cousin thing goes, if they are of a different sex, then it's a state issue. If they are of the same sex, it's a federal issue, because they do not fit the federal definition of marraige."
And, you base this on what particular section of the Constitution?
If it is, then you are torturing yourself. It seems pretty straigtforward to me. Let's use the example of alcohol. State have the right to regulate the production, distribution, and consumption of alcohol, but they do not have the right to redefine the chemical composition of an alcohol molecule. There is a difference between regulating and redefining.
And, you base this on what particular section of the Constitution?
Where in the constitution does it say that the federal government has the right to define a mile? A meter? A second? An hour? The color blue? So we should hand this over to the states? That will go over real well in real life. I don't see anywhere in the constitution where it says that federal government (the FCC) has the right to regulate electromagnetic interferace generated by mother-boards. Since they didn't inclue it in the constitution, I'm assuming the founding fathers wanted it to be a state issue. Wow, and I didn't even know that the founding fathers had computers.
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.
Let's use the example of alcohol. State have the right to regulate the production, distribution, and consumption of alcohol, but they do not have the right to redefine the chemical composition of an alcohol molecule. "
So, you think a molecule is the same as a legal contract? Did you complete high school?
"Where in the constitution does it say that the federal government has the right to define a mile? A meter? A second? An hour?
Did you complete 8th grade, as that's the grade where most American students take and pass their American government class. If you struggled with that class, I might point you to Art. 1, Sec. 8. Let me know what you find out.
Clearly, you are one of "those" social conservatives that don't like gay marriage. That's fine. But, just like liberals who don't like guns, you're willing to ignore the Constitution, just to make sure the law reflects your personal social agenda. No thanks.
The 10th Amendment couldn't be any clearer to people who have the intellectual capacity to understand it.
"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."
There is no mention of marriage in the US Constitution, at all.
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 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.
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.
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”?
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.
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.
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?
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