image Yesterday Judge Joseph L. Tauro ruled that the federal Defense of Marriage Act of 1996 in part violates the Constitution.  DOMA was passed by a vote of 342-67 in the House and by a vote of 85-14 in the Senate, and then President Bill Clinton signed it into law.  So this bill definitely had bipartisan support.

Judge Tauro didn’t find the whole act unconstitutional, rather he found section 3 of DOMA to be unconstitutional which provides the definition of marriage.  That section reads:

‘‘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, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’’.

In this decision he concluded that there is no “rational basis” to support DOMA and that its passage was motivated only by “irrational prejudice” and because of “animus.”  Judge Tauro in his decision noted the asserted objectives of Congress listed in the House Report:

The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.

Yesterday Judge Tauro concluded that a vested public interest in “procreation and child bearing” doesn’t provide a rational basis for upholding DOMA.  He also decided that “defending traditional notions of morality” under the U.S. Constitution is a permissible basis for supporting DOMA.

He notes that, “Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.”

He referenced material American Psychological Association, American Academy of Child & Adolescent Psychiatry, American Medical Association (fails to mention he’s referencing the GLBT Advisory committee, I know numerous pediatricians who would disagree) and the Child Welfare League.  It is common knowledge that the groups he cites are overrun with social progressives within their leadership.  Many of the studies that are often referred to have been determined to be flawed, considered by some to be junk science ,and it has been asserted the concern about homosexual parenting has a rational basis.  With all due respect, the Judge’s assertion that there is consensus is false.  Perhaps among social progressives in that field, but there is  hardly consensus among practitioners and social scientists.  Then there’s the politicization of many of these organizations to consider, but I digress.

Congress when it cited a vested public interest in procreation and child bearing, as well as, defending and nurturing the institution of traditional heterosexual marriage… it was simply agreeing with what the U.S. Supreme Court.  The Court has stated that marriage is “fundamental to our very existence and survival,” (Loving v. Virginia 1967) and has “more to do with the morals and civilization of a people than any other institution,” (Maynard v. Hill 1888).

In regards to “defending traditional notions of morality” we use “traditional notions of morality” to defend law all of the time.  All law is moral, the question to ask is whose morals?  On what should that be based?  Court opinion?  Popular opinion?  No, I contend it (should) is based on natural law given by nature’s Lawgiver.  There is an objective standard for morality based on something other than culture’s prevailing view of morality.  If homosexual marriage isn’t immoral, then it would be discriminatory to disallow it, but morality is the basis of any law.  To say that it isn’t rational to appeal to morality is, in my opinion, irrational.

Rulings on marriage like this, the Matthew Spalding for the Heritage Foundation wrote, “alters its core meaning, for to redefine marriage so that it is not intrinsically related to the relationship between fathers, mothers, and children would sever the institution from its nature and purpose.”

In a second ruling, Judge Tauro concluded that section 3 of DOMA also was unconstitutional based on the 10th Amendment.  I’m glad to see an interest in protecting states’ rights and sovereignty.  Now I just hope that this interest is also shown when it comes to education, Obamacare, and a ton of other erroneous decisions made under an improper interpretation of the Commerce Clause.  I’m not going to hold my breath on that.  Even a liberal law professor has expressed a concern for what this precedent could mean (who thinks both cases will be overturned on appeal… I’m not so sure they will be appealed):

Judge Tauro’s attempt to limit federal power through the Tenth Amendment so that it does not interfere with state prerogatives might delight members of the contemporary Tea Party movement (at least if it wasn’t aimed at DOMA), but it should give most Americans pause. The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

Hmmm… a silver lining?  Perhaps.  Where I find fault with this (though I do like pro-10th Amendment rulings) is applying the 10th Amendment to Medicaid coverage seems erroneous.  The Federal government, one would think, should have jurisdiction over federal funds.  DOMA doesn’t tell states that they can’t have same-sex marriage, as seen in section 2 of DOMA which was upheld:

‘‘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.’’.

Tauro is at least consistent in in his 10th Amendment argument by supporting section 2.  You couldn’t argue 10th Amendment and at the same time strike that language as well.  But retaining federal jurisdiction on a marriage definition for the purpose of partner benefits or medicaid seems appropriate.  The 10th Amendment really doesn’t apply here.  The 10th Amendment doesn’t give Massachusetts the right to determine for the rest of the country how marriage will be defined for public purposes.  Now each state that has same-sex marriage can spend its own funds that way if it desires, the federal taxpayer shouldn’t be on the hook.

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