Law and Marriage

Townhall.com ^ | July 13, 2010 | Cal Thomas

[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.

[OldDeckHand]

"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.

[OldDeckHand]

"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.

[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?

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?

[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?"

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.