In defense of the Defense of Marriage Act

(from The Wall Street Journal, March 2, 2011)

DOMA leaves the issue of gay marriage to the states, which is exactly where it belongs


The Obama administration has taken the extraordinary step of informing Congress that it will no longer defend the constitutionality of the Defense of Marriage Act, which defines marriage for federal purposes as “the legal union between one man and one woman.”

DOMA effectively bars recognition of same-sex marriages at the national level, and Attorney General Eric Holder has said that the administration believes that this violates the Constitution’s equal protection principles. Whatever the motivation behind this decision—and wherever one stands on the debate over gay marriage—the administration’s refusal to defend this law in court is not justified.

Congress passed DOMA in 1996, when Hawaii appeared to become the first state to recognize same-sex marriages. Had Hawaii done so, it would have immediately raised two fundamental issues. First, would other states be required to recognize gay marriages performed in Hawaii under the Constitution’s “Full Faith and Credit” clause? Second, if gay marriage was permitted in some states, would the federal government also be required to recognize same-sex unions—especially in light of the scores of federal laws that grant or withhold some benefit based upon marital status?

Congress answered these questions with a federalist solution. DOMA posits that the definition and regulation of marriage has always been a state issue; it is one of those fundamental “police power” prerogatives the Constitution reserves to the states alone. States have adopted widely differing rules governing who can marry who (first cousins, for example, can marry in Connecticut but not in West Virginia), at what age (most states permit the marriage of 16-year-olds but impose very particular requirements on the young couple), and under what conditions. DOMA preserves this diversity.

The Obama administration is now claiming that classifications based on sexual orientation should, for equal protection purposes, be treated the same as those involving race and should be subject to “strict scrutiny” by the courts. This is tantamount to arguing that DOMA must be invalidated, since in most cases application of “strict scrutiny” results in the challenged law being held unconstitutional. “Strict scrutiny,” as lawyers and judges often say, is “strict in theory, fatal in fact.”

DOMA recognizes and protects the unique constitutional role of the states in deciding these issues. It is through the democratic process within the states that a genuine and lasting resolution to the question of same-sex marriage can and should be found. Today, five states and the District of Columbia permit same-sex marriage. Another four states recognize gay marriages performed in other jurisdictions, and 41 states do not recognize such unions. DOMA protects both legal regimes.

It’s true that on the federal level DOMA clearly establishes a preference for traditional marriage. But it does not purport to define marriage for any purpose other than federal programs, which can be expanded to same-sex couples on a program by program basis, as President Obama has already done in many areas.

Inviting a comprehensive judicial resolution of the issues surrounding same-sex marriage, which is what the administration has done by announcing that it will no longer defend the law, is the worst of all possible solutions. There is a political process taking place that has secured, and doubtless will continue to secure, the ability of same-sex couples to marry in many states. Shutting down that process through a judicial ruling will end all possibility of compromise. And like Roe v. Wade‘s effort to finally “solve” the abortion debate, it will divide our society on this issue for decades to come.

President Obama took an oath to uphold the Constitution, and one aspect of that responsibility is to defend the laws Congress enacts against constitutional attack if there is any reasonable defense to be made. There is such a defense to be made for DOMA.

Messrs. Rivkin and Casey, Washington D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations. They represent 26 states challenging the constitutionality of ObamaCare.



One thought on “In defense of the Defense of Marriage Act

  1. Martin

    Your article overlooks the recinding of the bans on miscegination: Loving vs Virginia in 1967. All of the excuses you mentioned for keeping DOMA were proffered for maintaining the miscegination bans. Using your logic (including societal approval), the Supreme Court could have decided that the bans were a States Rights issue which you suggested for DOMA (among others) in your article. Marriage licences are a civil affair not a religious affair – if they were, priests and rabbis among other clerics would be selling marriage licences not City Hall. Also if marriage were really a religious affair, aetheists couldn’t get married. The 14th ammendment was cited for ending the miscegination bans as well as the bans on same sex relations. It will be the reason for ending DOMA and all bans on same sex marriage.


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