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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  1. The fact of the matter is that this law is disgusting. The fact that our congress even passed this law is disgusting! How can a nation that is all about “freedom” this and “freedom” that do things like this? America needs to learn to be tolerant of other people, instead of just being selfish and caring about one’s own beliefs. I’m so sick of hearing about how religious groups protesting against gay marriage and this and that. I respect there beliefs, and they should respect mine—welcome to America where there is a separation of church and state. That means that our laws are not to be defined or designed around religious beliefs. It’s time to wake up America and smell the coffee. This is why I moved to Germany after college….because the people are so much more intelligent, tolerant, and rational.

    1. Joe you said “the fact of the matter is that this law is disgusting” “people here are so much more intelligent, tolerant and rational” – tolerance is a two way street, and there is more than a religious component to wanting to preserve the traditional definition of marriage. To demonstrate tolerance means you actually have to have a disagreement. I think it’s good that you have the right to disagree me. Your comments reflect an intolerance for people who disagree with you on this issue.

      “…our laws are not to be defined or designed around religious beliefs” – ok, fair enough, what are they to be defined or designed around? There has to be some basis… what would you suggest?

      1. Murder isn’t illegal because it’s immoral. It’s illegal because it infringes on the victim’s right to life. Therefore, all laws are based on the rights enumerated in the constitution. Duh.

      2. What’s the basis of the rights enumerated in the Constitution? Does the Constitution give us those rights or does it simply protect?

        Why does a person have a right to life? Who granted that?

  2. Do you realize that your link “the concern about homosexual parenting has a rational basis” goes to a George Rekers paper?

    He’s the guy who build a life around claiming that he could turn gay people straight.

    He was recently caught coming back from a vacation in Spain that he spent with an attractive Puerto Rican (male) hustler.

    Is he your idea of an expert?

    Is he the best you can do?

    Do you still claim that his work provides a rational basis?

  3. Shane,

    Preserving marriage as currently defined by the state means to deny a certain group of citizens the same rights and responsibilities that everyone else enjoys, and it means to deny their children the same legal protections that other children enjoy. So there’s real, tangible harm being done to innocent, tax paying citizens who want nothing more than to live their lives and fashion their families as they see fit.

    Folding same-sex unions into the legal definition of marriage solves this problem. It increases individual liberty and removes roadblocks to the pursuit of happiness. It promotes stability. I honestly don’t see how granting same-sex couples equal marriage rights negatively affects anyone else. And Massachusetts is living proof, where the majority now favors same-sex marriage.

    You say there’s more than a religious component to the desire by some to preserve the traditional definition of marriage, and you’re right. The other component is animus. If there’s anything more to the opposition of same-sex marriage than animus and religion, please educate me. I have an open mind, and can be swayed by a compelling argument. But I’ve never heard one from your side.

    I can sympathize with your feeling that the people most clamoring for tolerance are themselves intolerant to opposing viewpoints. But keep in mind that by lacking a compelling, rational argument against same-sex marriage, those against it come across as being closed-minded at best. At worst, they seem to be motivated by nothing but hatred of their fellow man.

    Tolerance of natural human variation is great. And tolerance of opposing viewpoints really is a virtue. But nobody should feel compelled to tolerate someone who would do them and their family harm, especially when the motivation is based on nothing but hatred.


    1. I don’t hate homosexuals, but then I don’t believe somebody’s identity is wrapped up in a behavior. I think the behavior is wrong. I don’t wish them ill will. I also don’t believe we should be able to change the definition of marriage to suit our sexual preferences. Any argument against same-sex marriage you are going to deem as not compelling and irrational. I’ve made plenty of arguments on this blog, you are free to read them.

      I don’t agree fully with this article, but I’m sure you won’t find it “compelling” either – and here’s another I’m sure you’ll reject –

    2. Well put, Scott.

      When DOMA was enacted, same-sex marriage was an abstract fear. Now it is a reality in five states plus the District of Columbia.

      All DOMA does is punishes legally-married same-sex couples and their children by withholding benefits automatically granted to similarly-situated opposite-sex married couples. I don’t see that as a good thing.

      1. Also keep in mind that in all but two of those instances it was the Courts that decided this. In none of these circumstance have the people decided, so to foist this onto federal taxpayers is ridiculous.

      2. I would point out that, historically, we wax and wane on the notions of court intervention vs. popular vote. Popular vote in the South would have maintained segregation. The South was not happy that the Supreme Court intervened. However, do we think it was a good ruling?

        I find it troubling when we want to pick and choose what we consider “appropriate” involvement. How would people respond if a court negated popularly elected legislation supporting same sex marriages?

  4. Opponents of marriage equality for Gay couples speak passionately about “States Rights” and Federalism and so on … but the fact remains that MOST of the legal benefits, protections, and responsibilities of marriage are bestowed on couples by the FEDERAL government. They number 1,138 according to the Government Accounting Office (GAO). Most significantly they have to do with tax law and Social Security, so it simply wouldn’t do for a Gay couple that is legally married in Iowa to suddenly become UN-married once they move to a neighboring state. On the other hand, any heterosexual couple can fly off to Las Vegas for a drunken weekend and get married by an Elvis impersonator, and that marriage will be automatically honored in all 50 states, no questions asked.

    This is why DOMA is transparently unconstitutional under both the 14th Amendment and the “Full Faith & Credit” clause. I know marriage equality for Gay couples makes some people uncomfortable. There are still many people today who are uncomfortable with people of different races marrying. But “popularity” and “constitutionality” are not always synonymous.

    If the federal government wants to wash its hands of this and leave it to states to define marriage for themselves, the federal government had better be prepared to dispose of all the benefits of marriage under tax law, Social Security, and so forth. I wonder how many married STRAIGHT couples would be happy with THAT?

    How is it that Straight (i.e. heterosexual) couples are encouraged to date, get engaged, marry, and build lives and families together in the context of monogamy and commitment, and that this is considered a very GOOD thing … yet for Gay couples to do exactly the same is somehow a BAD thing? To me this seems like a very poor value judgment.

    It has nothing to do with religion, because the United States is not a theocracy. It has nothing to do with parenting, because one does not need a marriage license to have children, nor is the desire or even ability to have children a prerequisite for obtaining a marriage license.

    Like it or not, there is simply no purely constitutional justification for denying law-abiding, taxpaying Gay couples the exact same legal benefits, protections, and responsibilities that Straight couples have always taken for granted.

    1. It’s called the 10th Amendment, you cite it yourself. It would unconstitutional to foist this decision onto other states who do not allow it either by code or constitutional amendment.

      This judge disagrees with you, which is why Section 2 of DOMA stands.

  5. Hi Shane,

    I read both articles, and you’re right…I didn’t find either compelling. I’ll take your advice and read your blog a little more in an attempt to find something might sway my opinion. Although you and I both know it’s as likely for you change my mind as it is for me to change yours.

    Ignoring the religious components of the Santorum Q-and-A, the argument that remains seems to be that a traditional, heterosexual marriage is the ideal way to raise a family, and that gay marriage will undermine traditional marriage. But he makes no attempt to articulate why gay marriage would undermine traditional marriage, and that’s what I’m looking for…a compelling argument of how gays marrying will affect anyone else in any significant, negative way. The benefits to the gay couples and their families is clear…but the implied harm to everyone else is not.

    In the other (lengthy) article, the argument seems to rest heavily on this concept:

    “Intimate heterosexual partners realize that they might generate a child together, or might once have done so. This colors and shapes the nature of their union in ways that homosexual love can imitate, and possibly even transcend, but cannot share in fully.”

    And that because same-sex relationships can never have that component of fertility, it would be unfair to bestow on them equal public recognition.

    This to me seems like a tenuous basis on which to deny an entire class of people (and their children) equal protection of the law, so again, I personally don’t find this compelling. Others might, though, and I have to admit that someone can feasibly take this viewpoint without animus and without a religious basis.

    To be consistent, however, such a person would necessarily deem infertile couples to be undeserving of equal legal status, although I can see how logistically barring them from marriage would be too complicated and invasive to implement. Besides, I can’t imaging anyone pushing for this politically because in this case it would be obvious to almost everyone that this is sheer nonsense.

    Based on the stress you put on the words ‘behavior’ and ‘preference’ in your last post, I believe our views on sexuality are just fundamentally different. I don’t see same-sex or opposite-sex attraction as either a behavior or a preference. I don’t see left-handedness or right-handedness as either a behavior or a preference. I don’t see clock-wise or counter-clockwise hair whorls as either a behavior or a preference.

    It’s simpler to justify discrimination based on behaviors and preferences than it is on a biological predisposition, and I believe that’s why so many people on your side of the debate cling to this bizarre notion that sexual orientation is a choice.


    1. You are right you aren’t going to convince me, but as for this “bizarre notion that sexual orientation is choice” there isn’t any conclusive proof that it isn’t. With the whole nature vs. nurture argument I go with the latter, and it isn’t bizarre as that was the prevailing view until lately.

      It wasn’t as if there was any proof to the contrary, it just wasn’t PC to say so. Because if it is behavior then they really can’t justify being a protected class with special rights.

  6. Shane–

    “Great and those states and DC can pay for it themselves, nobody is stopping them from doing that.”

    Not all these things are monetary. For example, a legal spouse had an advantage in immigration issues. States cannot accommodate that. And why should states have to pay additional stipend to same-sex couples that the feds cover for opposite-sex married couples? BTW, we live in a representative republic and do not submit every issue and budget for a popular vote. That’s why we have legislatures.

    “It wasn’t as if there was any proof to the contrary, it just wasn’t PC to say so. Because if it is behavior then they really can’t justify being a protected class with special rights.”

    Oh, really? Why do we provide special civil rights protections to people because of their religion? That is not an inborn trait, it is a lifestyle decision. So if you think that civil rights protections do not belong to people because of behavioral choices, then I’d say civil rights on the basis of religion should be the first to go. But I don’t want to go there.

    Furthermore, same-sex married couples aren’t asking for special rights, just the same benefits granted opposite-sex married couples.


    “To be consistent, however, such a person would necessarily deem infertile couples to be undeserving of equal legal status, although I can see how logistically barring them from marriage would be too complicated and invasive to implement. Besides, I can’t imaging anyone pushing for this politically because in this case it would be obvious to almost everyone that this is sheer nonsense.”

    Actually, it would be very simple to do so. Simply do not recognize a marriage between two people until they produce an offspring biologically related to both. Really, if one takes many of the arguments of the anti-gay-marriage side to their logical conclusion (marriage is for the naturally occurring children of a man and a woman), marriage in this country would be a lot different than it is today. I half-jokingly have proposed that marital status only be granted to a couple upon the birth or adoption of a child, and that it would be automatic to reduce the number of out-of-wedlock children. Once all children reach the age of majority, the marriage would be dissolved, since we are told it is not really for the selfish adults who want to get married, but for their children.

  7. Shane, you wrote, ” If homosexual marriage isn’t immoral, then it would be discriminatory to disallow it, but morality is the basis of any law.” SCOTUS has already ruled that homosexuality is not illegal and, therefore, not immoral. You refer to the Lawgiver and so I assume you are referring to God. First, we are not a theocracy nor do we want to be. Therefore, the Bible is not the law of the land and is not the standard for morality for legal purposes. Second, I have studied the scriptures used to condemn gays in Hebrew, Greek, Latin and countless English translations and, humbly, have come to the understanding that they are not referring to homosexuality but to male temple prostitution done to worship false gods of the time. I would be happy to discuss them with you at some time. Even if you disagree, many hold to this opinion. So to justify outlawing gay marriage because of a certain interpretation of scripture that is controversial should definitely not be the basis of any law. Be blessed.

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