A must-read analysis of the recent federal district court decision attacking DOMA, written by Hadley Arkes, one of DOMA's architects.
Judge Tauro Does DOMA
July 09, 2010 8:33 AM
By Hadley ArkesJudge Joseph Tauro, in the federal district court in Boston, took it upon himself to strike down the 1996 Defense of Marriage Act (DOMA). With that stroke he would remove one of the key barriers standing in the way of imposing same-sex marriage on the nation as a whole. And it would be done through the power of judges alone, without the need to agitate the community in any political controversy, and without citizens or legislators needing to do such unseemly things as voting.
Judge Tauro accomplishes this task by essentially presupposing the most decisive points that he should have been obliged to establish in an argument. A good third of the judge’s opinion was spent in showing all of the benefits that would be denied to spouses of same-sex couples in the federal government. They would be denied those benefits simply because Congress, which has the sole authority to legislate the federal code, stipulated that every reference to marriage in that code would be a reference to a legal union of a man and a woman. And yes, the consequence of that stipulation in the meaning of marriage does mean that no companion of the same sex can have the standing of a spouse to receive benefits in the form of retirement, pension, medical care, to the extent those benefits are conferred on spouses and members of the legal “family.”
But to compile the litany of benefits foregone is not to make the case that they have been withheld wrongly, without justification. An argument must be supplied. Judge Tauro wanted to argue that the withholding of benefits was illegitimate because the distinction between a marriage composed of a man and a woman, and a marriage composed of people of the same sex, is an illegitimate, unjustified distinction. For Judge Tauro that distinction treats differently people who are in the same situation i.e., people who claim to be married, as indeed they may claim right now under the laws of Massachusetts.
Up until the early 1990s, when judges started acting as engines to install same-sex marriage, it did not seem to occur to most people that marriage meant anything other than the marriage of men and women. Judge Tauro’s affectation is to have us believe that it is quite as natural and legitimate now to assume that any couple of the same sex would be as plausible a candidate for marriage as the coupling, more familiar, of a man and a woman. One would hardly know, from Tauro’s opinion, that there are compelling arguments, grounded in nature and moral reasoning, that call into serious question the coherence of any arrangement that would call itself “marriage” while detaching itself from the union of a man and a woman. Tauro might have serious arguments to make against that case, but that argument has to be made. This late in the seasons of our experience, the overthrow of the traditional understanding of marriage is an act still sufficiently momentous that it deserves to have the reasons assembled to justify itself. Tauro simply begins by presupposing the legitimacy of same-sex marriage and the “irrational prejudice” of anyone who would deny it. As Bertrand Russell once said, presupposing has every advantage over demonstration that theft has over honest labor.
But from that sleight of hand, Tauro fell into arguments that virtually turned on themselves and self-destructed. Since he could see no legitimate ground for denying same-sex marriage, he could recognize no legitimate purpose in a statute that was meant to shore up marriage, or to prop up the states in preserving marriage against the move of judges, state and federal, to strike down the traditional laws of marriage. Hence Tauro could twist into falsity the facts that were before him: He could simply declare that Congress enacted the Defense of Marriage Act “for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves.” But that has things quite backward: Congress did not act for the purpose of inflicting disadvantages on anyone. It acted for the purpose of firming up the defense of marriage in the law, and that defense simply had the ancillary effect of withholding, from same-sex couples, the benefits that flowed to couples truly married. . . .
18 Comments
Well, actually, Judge Tauro listed the reasons that Congress said it passed DOMA, and dismissed each as constitutionally impermissible. Maybe if Mr. Arkes had actually read the judge's decision, he would understand why the judge didn't have much choice but to strike down DOMA as unconstitutional. It's an easy legal argument: the federal government has no rational basis upon which to determine that some, but not other, married couples may receive federal benefits. Please honor and respect our nation's constitution, please!
So supposing a state legalizes polygamous and incest marriages? Should the federal government be compelled to honor those unions at each state's activist whim? Or should homosexuality continue to recieve special recognition as the only lifestyle that has the right to have marriage redefined for them while all other lifestyles continue to be discriminated against?
Judge Tauro said “every [historical] effort to establish a national definition of marriage met failure.”
The Utah Enabling Act of 1894 successfully banned polygamy.
That's right! What's more, the language of the Utah Enabling Act was repeated, word-for-word, in the laws that admitted New Mexico, Arizona and Oklahoma as states in the early 20th Century. Therefore, the federal government has shared authority over the marriage laws of four U.S. states. So why shouldn't the Utah Enabling Act be overruled as unconstitutional and discriminatory as well?
So Tauro's claim that “DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage" is completely false. So his ignorance of history calls into question the quality of his judgement as well in my view.
Activist judges are not compatible with democracy.
Also here in Europe we have too many judges acting as legislators, and this become a huge democracy problem: it subverts the very basis of any democracy: the separation of powers.
I think we need constitutional amendments stating not only that marriage is the union of a man and a woman, but also that judges ruling againts the constitutional right of the people to determine the content of the law with its vote - when no natural rights are compressed - should be automatically removed from their jobs.
Well, the Utah Enabling Act was used to admit Utah into the union...not define marriage for the states already present.
Plus, I dunno who decided that USA is a democracy. It's a constitutional republic.
It's a representitive democracy, actually. A democracy is defined as: a political form of government carried out either directly by the people (direct democracy) or by means of elected representatives of the people (representative democracy). It can also be called a constitutional republic, I suppose. That is the nature of synonyms.
"The Utah Enabling Act of 1894 successfully banned polygamy."
Yet DOMA doesn't ban same-sex marriage but somehow discriminates against legally married same-sex couples. Weird. Only in America is it legal to be something yet discriminated against. And only in the conservative mind is this arrangement perfectly ok!
It is posts like yours, Jeff, that convince me more and more of the need for the Federal Marriage Amendment.
"Well, the Utah Enabling Act was used to admit Utah into the union...not define marriage for the states already present."
What it demonstrates is that there is precedent for the federal government taking part in determining how marriage should be defined in a state, regardless of Judge Tauro's ignorance of legal history.
Conservative, if the US government can pass the Utah Enabling Act, why can't it pass a similar act outlawing same-sex marriage?
An amendment to the U.S. Constitution requires the support of two thirds of each house of Congress, and ratification by three fourths of the states (currently thirty-eight). The most recent Congressional vote on the Federal Marriage Amendment, which would have limited marriage in the United States to unions between one man and one woman, occurred in the United States House of Representatives on July 18, 2006 when the results were 236 yea to 187 nay votes, falling short of the 290 yea votes required for passage in that body.
I'm hoping for better results next time.
You're STILL missing my point, Conservative. Why doesn't Congress just pass a law outlawing same-sex marriage? Why worry about changing the US Constitution? Hint: needing to change the Constitution tells you something about the constitutionality of trying to outlaw same-sex marriage with the existing US Constitution LOL.
The US Constitution says absolutely nothing about marriage. So as it stands, it doesn't outright outlaw any type of marriage whatsoever whether it would be SSM, incest, bigamy, etc. Congress would be showing the same indecision over polygamy if it were as big an issue today. That much demonstrates how far we have fallen down the rungs of the moral ladder.
But it doesn't say that we cannot forbid some types of marriage . That's why SSM is already officially illegal in 41 US states. And the US congress hasn't decided that those statues violate the US Constitution either. Indeed, if SSM was protected by the Constitution, as you say, why don't they force all 50 states to recognize SSM?
Also, Jeffery, would you say that the 14th amendment protects women's sufferege? If so, why was it necessary to pass the 19th amendment granting women the right to vote?
Some amendments are necessary to clear up any confusion over how the Constitution is interpreted.
I never said same-sex marriage was protected by the Constitution. What I said was, about a dozen times (doesn’t seem to be sinking in!) is that if marriage is offered to one kind of couple, it must be offered to all kinds of couples, unless a rational state interest supports prohibiting a particular kind of marriage.
What is the rational state interest in prohibiting same-sex marriage? Well?
Without a rational state interest, same-sex couples have a right to marry, according to the 14th Amendment. There is no rational state interest in conferring special rights and status on opposite-sex couples but not same-sex couples.
And there is absolutely to federal interest in granting special rights and benefits to opposite-sex married couples but not to same-sex married couples. At least none that anyone has been able to specify.
Marriage is more than the private relationship of two people. It is a social institution that provides society with the foundation of civilization-the procreating family unit. Natural marriage lowers welfare costs to society and encourages an adequate replacement birth rate.
Legalizing SSM has seen a rise in illigitimacy which lead to increases in crime and poverty forcing the rest of us to pay higher taxes and social spending since children from broken homes, particularly fatherless homes, are responsible for most violent crimes and youth problems. Indeed, what is the point of getting married and committing to another person for life if children are an irrelevant byproduct to matrimony?
This is the case in Scandinavia and the Netherlands, and I don't want the same thing happening here.
The Congress should outlaw same-sex marriage because of its horrible social costs. Why doesn't it?!?!
There is a lot of disagreement over the status of SSM according to the Constitution. That's why.