imageJust some additional thoughts related to President Barack Obama’s decision to no longer have the U.S. Department of Justice defend the Defense of Marriage Act based on some of the comments that we’ve received here.

The government through DOMA did not define marriage, it recognized what the definition of marriage already was.  Did it endorse the proper definition?  Sure, but let’s not act as though marriage has not had a strict definition for thousands of years.  Only recently have people decided that the definition should be broader.

Presidents don’t have the right to pick and choose what laws they will defend or enforce.  Based on the rationale that Attorney General Eric Holder gave, I think Governor Mike Huckabee had it right in a recent interview with Laura Ingraham when he suggested that he also should then quit defending the health care reform law since it too has been deemed unconstitutional.  Oh no that won’t happen since President Obama doesn’t believe it to be unconstitutional!

People practically came unglued with Congressman Ron Paul’s (R-TX) presser condemning President Obama’s decision to abandon DOMA.  They said, “why is he mentioning section 2 of DOMA?  That isn’t what has been declared unconstitutional!”  States can still decide for themselves and not forced to apply the full faith & credit clause in this instance.  Certainly in the decision this summer in Massachusetts it would have been problematic if Judge Joseph Tauro ruled the whole thing constitutional while in the same ruling uplifting the 10th Amendment (the only good thing about this ruling).  It would have been contradictory. 

Here’s the point I think everybody is missing.  While there are currently no lawsuits challenging section 2 Congressman Paul, rightly, expresses concern because that may not always be the case (now I’ll admit that he doesn’t seem to recognize that same-sex marriages are already allowed in Iowa, but I think his larger point remains in tact).  I am also unconvinced that the Department of Justice would make a spirited defense if section 2 is challenged.  I also  believe it is just a matter of time before it is challenged, and I don’t believe most homosexual activists would have any problems having gay marriage imposed on other states.  If it is found unconstitutional in a lower federal court will then President Obama change his mind on this as well?

Again, the President can’t just pick and choose which laws he will defend.

  1. Shane–

    It will probably come to a challenge under Full Faith and Credit. However, I understand it has not been (successfully) invoked in marriage cases, even when interracial marriage was illegal and even criminalized in many states.

    In modern day cases, I’m wondering if any states do not recognize a first-cousin marriage entered into in a state where it is legal, or a fourteen year old husband with a thirteen year-old wife legally married in New Hampshire. Should states where such marriages are against public policy by virtue of their laws refuse to recognize such marriages.

    Suppose a same-sex married couple is traveling through a state where their marriage is not recognized and one of them dies in an accident. Should the state refuse the recognize the status of the surviving spouse?

    How about a little tit-for-tat game between the states where a state with SSM decides to refuse to recognize any marriages from state that does not recognize that state’s SSMs? I don’t know if that’s legal, but it’s fun to think about.

  2. Actually, the point he raised about Iowa actually came up in Texas, I believe, so that might be why it is on his mind. Texas either proposed or passed a law on that, directly.

  3. A strict definition for thousands of years! How silly. Was that strict definition polygamy or monogamy? One woman and one man or one man and several women? The Bible sanctioned polygamy and it was practiced around the world in more cultures than monogamy and for a much longer time period. State sanctioning of marriage only began with the Reformationists. And a Christian emperor banned gay marriages only a few hundred years after Christ. But I guess you don’t need to know much to write blog posts defending Ron Paul.

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