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Law and Marriage
Townhall.com ^ | July 13, 2010 | Cal Thomas

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.


TOPICS: Culture/Society; Editorial; Government
KEYWORDS: gaymarriage; marshall; masssjc; newyorktimes; romney; romneyfascism; romneyforcesclerks; romneymarriage
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To: OldDeckHand
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.

51 posted on 07/13/2010 12:59:50 PM PDT by CA Conservative
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To: NurdlyPeon
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.
52 posted on 07/13/2010 1:02:14 PM PDT by Man50D (Fair Tax, you earn it, you keep it! www.FairTaxNation.com)
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To: OldDeckHand

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.


53 posted on 07/13/2010 1:07:13 PM PDT by LearsFool ("Thou shouldst not have been old, till thou hadst been wise.")
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To: Man50D; OldDeckHand
Well guys, in the truest tradition of democracy and FreeRepublic, I'm going to leave it in the hands of my fellow FReepers. They can read your posts, then they can read my posts, and then they can decide for themselves who is making sense, and who is the ying-ying.
54 posted on 07/13/2010 1:09:04 PM PDT by NurdlyPeon (Sarah Palin: America's last, best hope for survival.)
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To: OldDeckHand
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"?

55 posted on 07/13/2010 1:30:21 PM PDT by Gee Wally
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To: Gee Wally
"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.

56 posted on 07/13/2010 1:52:31 PM PDT by OldDeckHand
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To: LearsFool
"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."

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.

57 posted on 07/13/2010 1:55:13 PM PDT by OldDeckHand
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To: OldDeckHand

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.


58 posted on 07/13/2010 2:15:35 PM PDT by BenKenobi (I want to hear more about Sam! Samwise the stouthearted!)
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To: OldDeckHand
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.
59 posted on 07/13/2010 2:24:43 PM PDT by LearsFool ("Thou shouldst not have been old, till thou hadst been wise.")
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To: OldDeckHand

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.


60 posted on 07/13/2010 2:26:30 PM PDT by Valpal1 ("All that is necessary for the triumph of evil is that good men do nothing.")
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To: BenKenobi
"Then why does the federal government ban bigamy?"

There is no federal criminal statute for bigamy. Yes, there are federal rules (administrative laws) that prohibit the federal government from recognizing plural marriages for the purposes of immigration. As I spelled out just above, since immigration is an activity that is left solely to the discretion of the federal government, there is no 10th Amendment issue at stake.

The last of the federal anti-polygamy statutes that applied to the states was repealed in the 1970s. It was called the Edmunds-Tucker Act. It's no longer "good law".

"If you had read Reynolds all the way through, they address your argument."

Yes, you keep saying that. I have read Reynolds now, twice. It doesn't say what you're asserting. Perhaps you'd like to share with us the passage of the opinion that you believe may be relevant. However, repeating "Just read the case", isn't going to cut it.

Furthermore, the concepts of "legal holding" and "obiter dicta" may be unfamiliar to you. In short, the legal holding in a Court opinion is the part of the opinion that addresses the legal questions set-forth in the case, and is the only part of the ruling that is binding on all lower Courts. I have previously indicated to you what the questions were in the Reynolds case. They weren't as you assert.

61 posted on 07/13/2010 2:39:19 PM PDT by OldDeckHand
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To: Valpal1
"So DOMA is legitimate as applies to immigration law because that is a federal power per the constitution."

DOMA isn't relative to US immigration laws.

More to the point, for a federal statute to succumb to a 10th Amendment attack, it must meet the minimal requirements set-forth in US v. Bongiorno. As such, any immigration statute wouldn't meet those tests, to include any immigration statutes that address marriage.

62 posted on 07/13/2010 2:43:09 PM PDT by OldDeckHand
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To: OldDeckHand

Alright, then does the Federal Government have the power to define marriage for the purpose of qualifying for various federal intitlement programs as well as tax filings?

Or do gay married couples from MA get to file as married, while gay couples from other states that don’t recognize their unions do not?

And doesn’t that just mean that basically, MA gets to force their definition on everyone else?


63 posted on 07/13/2010 2:50:04 PM PDT by Valpal1 ("All that is necessary for the triumph of evil is that good men do nothing.")
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To: Valpal1
'Alright, then does the Federal Government have the power to define marriage for the purpose of qualifying for various federal intitlement programs as well as tax filings?"

Well, if you believe Tauro, probably not.

"Or do gay married couples from MA get to file as married, while gay couples from other states that don’t recognize their unions do not?"

That is exactly how it would work in theory. You see, the federal government would be required to accept any marriage certificate issued by any state. There is some debate if other states would be forced to recognize marriage certificates issued by other states.

This part of DOMA has yet to be litigated. I would opine that if other states aren't required to recognize the gun licenses issued by other states (or any number of other types of licenses), then why would a marriage license be any different? I don't think it should.

Just like VA will - with limitations - accept and recognize a FL concealed carry license, VA could also accept and recognize Florida-issued marriage licenses.

In that regard, homosexual marriages would "only be forced" on the residents of the states that recognize homosexual marriage.

64 posted on 07/13/2010 3:04:46 PM PDT by OldDeckHand
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