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.
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?
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.
Sheesh, what is this, moot court?
That’s fine, I suppose. Keep practicing, son, and someday you won’t have to rely on silly sophistry tactics, but will be able to partake in serious discussions with the grown-ups.
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"?
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 states 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.
Spare me fool. I've been a practicing attorney since 1983. That's more than 27 years, probably longer than you've been alive, son. When I see "grown-ups" making cogent arguments about constitutional law, I'll comment. So far, you don't quite meet that standard, but thanks for playing.
Then why does the federal government ban bigamy? The 10th cannot abrogate the common law definition of marriage. It’s never been a state responsibilty to define marriage for itself.
If you had read Reynolds all the way through, they address your argument.
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.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.