What happened yesterday was an amazing display of arrogance combined with incoherence. Pres. Obama promised to “enforce” the law, but not to “defend” it. What does that mean?
It means, for one thing, that the Justice Department is now totally, nakedly politically corrupted, delivering to Pres. Obama's base on an issue they want, but continuing to “enforce” the law so as to minimize public awareness and opposition. It is a legally incoherent position, but that doesn't matter to Eric Holder's Justice Department.
The President's job is to defend the laws duly passed by Congress. On what grounds did Pres. Obama throw in the towel on DOMA?
He and Holder called the law “legally indefensible” because, well, Congress repealed Don't Ask, Don't Tell, and the Supreme Court has said that criminalizing homosexuality is unconstitutional, and one low-level federal judge says DOMA may not be constitutional.
Wow. That's pretty underwhelming evidence that marriage cannot be defended. What legal ammo did Pres. Obama just choose to ignore?
Oh, just controlling Supreme Court precedent, in Baker v. Nelson, which explicitly rejected equal-protection arguments for gay marriage. Calling our federal marriage law “legally indefensible” also ignores dozens of court decisions in the last few years upholding marriage as the union of husband and wife at the state and federal level.
Here, for example, is what Maryland's high court ruled in 2007: “Marriage enjoys its fundamental status due, in large part, to its link to procreation. This 'inextricable link' between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members. ... Acceptance of this notion is found in the clear majority of opinions of the courts that have considered the issue.”
Washington's state supreme court in 2006 pointed to numerous standing Supreme Court decisions in upholding marriage as one man and one woman: “[A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple.”
A federal bankruptcy court (In re Kandu) upheld the federal DOMA statute: “Authority exits [sic] that the promotion of marriage to encourage the maintenance of stable relationships that facilitate to the maximum extent possible the rearing of children by both of their biological parents is a legitimate congressional concern.” (146).
And the 8th Circuit just a few years back rejected equal-protection arguments that gay marriage must be recognized: “We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”
(See a summary showing that the majority of courts that have voted to uphold marriage, co-authored by NOM's own Josh Baker and Bill Duncan of the Marriage Law Foundation, here.)
Let me put it this way: The majority of courts, as well as the majority of people, recognize that there is no right to gay marriage.
If even the European Court of Human Rights, if even France's supreme court, and if even the European Court of Justice recognize that marriage as the union of husband and wife is constitutional--what's the matter with Pres. Obama and Eric Holder?
With all this wealth of legal ammo, in addition to common sense, Pres. Obama cannot figure out how to do his job and defend the law?
It gets worse. The most striking thing Pres. Obama and Eric Holder did is to unilaterally declare that sexual orientation is a protected class subjected to stricter scrutiny than laws affecting the rest of us. Gay, in other words, is constitutionally to be treated like race or gender.
Not only has the Supreme Court never ever required this, but no federal circuit court of appeals has even ruled on this either, yet. Pres Obama is unilaterally creating new constitutional principles that neither Congress nor our courts have ever acknowledged.
This is how the Democrats, under Pres. Obama's leadership, are responding to an election loss: Do an extra-constitutional end run around the democratic process. In Wisconsin and Indiana, that means fleeing the state to prevent a vote. Here, it's passing by fiat what you cannot get through Congress.
Pres. Obama could not repeal DOMA, as he promised his supporters, by fair means, so he's chosen a foul one.
Pres. Obama could not get legislation declaring sexual orientation a protected class passed by Congress--so he and the left-wing Harvard lawyers he hired are just going to unilaterally declare it so.
He gets to be Congress and Supreme Court too.
Megan McArdle, no fire-breathing social conservative, called it “the Imperial Presidency” on the website of the Atlantic, and she's right!
(I know we have a lot of Democrats who are with us on the marriage issue, and I thank every one of you for your support. This is, or should be, a bipartisan issue. But right now we face political leadership which is lawlessly, aggressively undermining marriage; and we have to stand up for marriage.)
You have to say this for current Democratic leaders, they are demonstrating to their base that they will go to really extraordinary, even radical lengths to deliver.
We would never ask the House leadership to try to match hard leftists' end-runs around our Constitution. We can and do call on them to do what Congress has done more than a dozen times over the last thirty years: Vote to intervene to become a party to this case. Vote to uphold DOMA, since Pres. Obama won't.
(Reminder: Go here to tell your representatives to stop Pres. Obama's illegitimate end-run around democracy and stand up for marriage!)