3 Heavyweights: Whelan, Bradley and Donovan on DOMA decision


Ed Whelan:

2. Attorney General Holder has the gall to claim to be acting consistent with DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” There are lots of reasonable arguments in defense of DOMA. The Obama administration has abandoned those arguments for purely political reasons.

3. Holder says that the Obama administration “will continue to enforce” DOMA. But it is logically incoherent for the Obama administration to refuse to defend DOMA and to continue to enforce it. The obvious explanation for this incoherence is political: Obama doesn’t have the guts to take the political heat for not enforcing DOMA, but he’s hoping that his refusal to defend it will lead to court rulings that he can hide behind.

Gerard Bradley:

...this administration has done nothing less than redefine marriage. The argument against same-sex marriage boils down to this: Marriage is the sort of relationship that necessarily requires spouses of different genders. Proponents of same-sex marriage say that marriage has nothing necessarily to do with the gender of the spouses, so it is arbitrary (and thus unconstitutional) for public authorities to limit marriage to male-female couples. The constitutional question depends wholly upon this question about marriage itself, about the reality — or, if you will, the truth — of what marriage is.

Today’s announcement confirms that the Obama administration believes what SSM advocates believe about marriage — not what the vast majority of Americans believe, and not what is reflected in every federal law on the subject.

Chuck Donovan:

Advocates for DOMA and the natural definition of marriage have pointed out from the beginning how flawed Justice’s work on these cases has been. Richard Epstein, who favors same-sex marriage on policy grounds, called it “almost like collusive litigation.”

DOMA’s defenders agree that the strongest argument for its rationality rests on the central purpose of marriage: the effective uniting of a man and a woman and the children they beget into the core unit of society, the family. In his letter, Holder dismisses this concern by noting that Justice “disavowed” any claim regarding “procreational responsibility” in the lower court.

In other words, this trifling matter of fostering bonds between parents for the sake of the next generation was tossed overboard back in port. No need to swim back for it.