Last Thursday, Judge Joseph Tauro, in an absurdly poorly written opinion, struck down portions of the federal Defense of Marriage Act (DOMA). In striking down DOMA, Judge Tauro overturned a law that was passed by large bipartisan majorities, was signed into law by Pres. Clinton, and that merely clarified and codified the law of marriage.
In the process, Judge Tauro also struck a dagger into the heart of our democratic processes and our constitutional system of government.
Congress passed DOMA because of a credible threat that courts were going to impose gay marriage over the will of the voters. Judge Tauro’s outrageous ruling certainly validates this basic concern of the legislators.
But if there is any excuse for Judge Tauro’s ruling, it lies in this fact: no-one in that courtroom in front of him tried to defend the law. President Obama’s Justice Department (with Elena Kagan’s participation as Solicitor General) pretended to defend DOMA, while actually sabotaging the law and ensuring its overthrow by the courts.
President Obama is afraid he cannot deliver on his promise to overturn DOMA in Congress, so he’s bringing in courts to do his dirty work. It was an underhanded trick, a sham trial, by folks who have sworn to uphold the law of the land. If the Justice Department lawyers couldn’t defend the law, they could have at least stepped aside. To pretend to defend, while actually undercutting DOMA, was and is a low blow.
How did President Obama’s Justice Department, with Elena Kagan as solicitor general, sabotage DOMA? Let me count the ways.
Washington Post columnist Charles Lane noticed one great oddity about Judge Tauro’s ruling. He goes through pages and pages of claiming the federal government has no right to define marriage for federal purposes—without ever mentioning the precedent set by the polygamy cases of the 19th century. But as he points out:
In fairness to the judge, the Justice Department seems not to have presented these facts to the court, and they aren’t mentioned in the only historical document in the record before him, an affidavit from Harvard historian Nancy Cott from which Tauro quotes frequently. Maybe we’ll hear more about them if the Obama administration decides to appeal.
Don’t hold your breath.
In the 19th century, we clearly established that the federal government has the right to define marriage for federal legal purposes. (Otherwise, marriage would not have existed in federal territories). Federalism works both ways: it means that states have a right to define marriage for the purposes of state law. But no state has the right to tell the federal government what marriage means in federal law. Between them Judge Tauro and President Obama’s Justice Department have ripped up the federalist system guaranteed in our Constitution.
But it gets worse than that.
When U.S. courts have upheld the legal definition of marriage, they have always pointed to one key reason for this historic definition: responsible procreation. Marriage is a sexual union of male and female because we need men and women to come together to make and rear the next generation; so children have mothers and fathers.