A short response to Shane’s post: Problems with Tauro’s DOMA Ruling.

Finally a federal judge stands up for states rights under the 10th amendment and the “Right” condemns the ruling.  One example, Andrea Lafferty, executive director of the Traditional Values Coalition, called Tauro’s ruling “judicial activism” and said Tauro was a “rogue judge.”  WHAT?!?!  Just because you don’t agree with the consequences of the ruling, doesn’t make it ‘judicial activism’ from a ‘rogue judge’.

For those who have a problem with the ruling please point out where in the constitution the federal government gets the authority to define marriage.  It does not.  And if you seek to twist and turn some provisions like the “commerce clause” or “general welfare” then don’t come crying when the left does the same to support their unconstitutional agenda.

For those who want to see this issue resolved in a constitutional manner you have two choices.  1) fight it at a state level or 2) a constitutional amendment which would allow the federal government jurisdiction over the manner.

Shane made the point that the federal government should be able to make the rules regarding where federal funds go, and therefor can define marriage.  This does make some sense, but it is a catch-22.  This is the same rational that the federal government uses to micromanage the affairs of every citizen, such as dictating what must be taught to our children in public schools.  Do it our way or forfeit your money.  This is a dangerous mechanism our government has used to usurp more and more power away from local control.  More about this can be seen in my previous post 11 Reasons Iowa Should Reassert Her Sovereignty.

I hope to expand on this next statement in a future post when I have more time to elaborate more on the details but the issues comes down to this:  The government has no business in granting marriage licenses. Anyone can call themselves married, the true definition is defined by God, not government. The government just wants to use it to manipulate benefits to buy votes, and get the fee they charge you to get the license.  The fact that I had to go to the government and ask their permission to get married is ridiculous.  Marriage is a covenant between me, my wife and God, government does not fit into that equation.  If we don’t want government to grant baptism licenses, allowing a government official decide who can and can’t get baptized, why on earth would we grant them that power over marriage?

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  1. I appreciate your argument about the role of government at its various levels in relation to this issue. It’s given me pause, not about the substance of DOMA, but rather with respect to the legitimacy of the form as you pointed out. However, I would take issue with you about the nature of marriage. Marriage has been understood for centuries as a civil contract between the parties. It has all sorts of legal implications, including property and paternity, and thus the government has an interest in the matter. It is, of course, a religious matter as well. But it’s a mistake to assert that it is one or the other…It is both. That doesn’t give the government the right to re-define marriage as the courts have been recently doing, however.

  2. I agree with Brian. The government has an interest in marriage because marriage has legal implications. I also suggest that marriage has serious social implications. Fro one thing, the very future of society depends on it. Questions regarding the rights of children and spousal rights are related to it and of interest to the public. What forms of marriage (polygymy etc) are accpeptable to or detrimental to society are also the business of the public and therefore of the government since it exists to carry out the will of the people. Marriage is a social contract and thus can never be considered purely a matter between me, my wife and God. That is why the marriage ceremony is by nature public, witnessed and recorded. I suggest the government has the duty to accept the will of the people regarding the question of whether same sex marriages are acceptable forms of marriage for our society and make laws accordingly. How best to accomplish that is what is in question. It is a mistake to think because the government’s role is unclear in that regard that we should assign it no role at all.

  3. The Bible is Gods eternal law for which the basis of all man made laws must devide from if such laws are considered just. Homosexuality is an intrinic disorder and in no way can such calls for tolerance change the fact that God considers this a most serous offense, and any society that excepts such perversion is doomed to Gods rath.

  4. I disagree that the government has any particular oversight just because marriage involves a civil contract. I enter into legal agreements with other parties regularly, very few of which involve the government, Federal or State, in any manner. Entering into a contract with another party does not even necessitate the involvement of an attorney (although it is usually a good idea), much less the government. As evidence of the lack of necessity of government involvement in marriage, consider what happens when a marriage ends. Does either spouse appeal to their state legislature, their Governor, or the President? No, if a conflict develops, it is settled as a civil matter, usually with the involvement of attorneys, and occasionally involves a civil trial. Rarely has a “crime” been committed, in which case the government might become involved, in the form of police, district attorneys, a criminal court, etc.

    In the absence of such influences as tax incentives in favor of marriage, government need have no role as regards marriage.

    As to moral judgements, whether based upon the Bible or another religious document, that should not be the purview of government, unless the moral offense involves a crime as recognized under law. I cannot imagine how anyone would wish to see most of our professional politicians become involved in legislating morality. Talk about the pot calling the kettle black!

  5. So many ways to rationalize why government has the right to define marriage, but still waiting for someone to point to the constitution to define the federal role in the matter. At the very least this is a state battle, and therefor Tauro’s ruling is correct. A victory for states rights.

    1. It doesn’t. But then again there’s a lot that the Federal government does that it shouldn’t. I don’t necessarily disagree, but when the Feds stop medicare/medicaid… when medical insurance stops being employer-based – then we can sidestep this issue. But while they still have their hands in this stuff then this will be an issue. You still haven’t made a good case for how the 10th Amendment does apply here though. Massachusetts can define marriage for themselves (well the court did in this case). They can also provide employment benefits and medicaid benefits with their own money. Nobody is stopping them from doing this.

      As far as states go – again I don’t really disagree, but again you need to walk a bunch of stuff back before it can happen.

      I just don’t see that happening.

      1. I agree, nearly everything the federal government is doing is unconstitutional and should be rolled back. But we can’t use that as an excuse to continue ignoring the constitution when the constitution doesn’t allow us to so something we want. The “everyone else is doing it” argument didn’t fly with my mom, we shouldn’t let the “everyone else is ignoring the constitution, why can’t I” excuse be used by politicians on “our side”.

  6. By the way I don’t consider this judge rogue. I just disagree with his reasoning, especially in the first ruling, his bias leaked through and made a weak argument.

    1. Yes the first argument was weak, he should have just stuck with the same 10th amendment argument.

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