President Obama and Elena Kagan sabotage DOMA defense

Brian Brown President, National Organization for Marriage
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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the Justice Department seems not to have presented these facts to the court, and they aren’t mentioned in the only historical document in the record before him, an affidavit from Harvard historian Nancy Cott from which Tauro quotes frequently.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.

Congress, when it passed DOMA, laid out in very clear terms that “responsible procreation” is a key reason for DOMA’s existence. As Judge Tauro’s ruling notes:

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.

So what does Obama’s Justice Department do?  In their briefs, allegedly defending DOMA, they repudiated “responsible procreation” as a reason for DOMA.  Judge Tauro sighed with relief:

For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly.

But Congress passed this law, not Obama’s Justice Department.

How can Justice’s lawyers strip a law of its clearly stated purpose?   Well, the DOJ brief claims “expert consensus” now exists that children don’t need moms and dads.

Everyone who cares about marriage or democracy or constitutional rights in this great land will be seeking innovative ways to get this ruling to a higher court, In the case of the National Organization for Marriage (NOM) that includes the court of public opinion—because the Supreme Court reads election returns.

Ultimately it becomes increasingly clear that Congress must act to protect the people’s right to vote for marriage, whether through a federal marriage amendment or some other means.

This week, NOM launches a 19-city “Summer for Marriage” bus tour.  We will rally with ordinary citizens across this great country from Maine to Minnesota, from Iowa to North Carolina and a lot of places in between to fight for our constitutional right to vote for marriage as one man and one woman.  For more information see www.marriagetour2010.com.

The alternative is rule by out of touch anonymous experts, backed by activist judges.  Brought to you by Pres. Obama.

Brian S. Brown serves as President of the National Organization for Marriage after serving as the Executive Director of NOM-California in 2008 and Executive Director of NOM until spring of 2010 when he was named President. Prior to coming to NOM-CA, Brian was the Executive Director of the Family Institute of Connecticut. During the five years he was with the Family Institute, he developed it into one of the largest statewide pro-family organizations in the Northeast.  He now brings that organizational expertise and New England familiarity to his work at NOM-CA.  Brian is a C. Phil. at UCLA in American History, earned his B.A./M.A. in Modern History at Oxford University, and received his B.A. in History from Whittier College.  Brian and his wife have six young children.