Defense Of Marriage Act To Be Argued In First Circuit Court Of Appeals: Why The Judiciary Should Reject The Challenge To DOMA's Constitutionality

The bipartisan federal Defense of Marriage Act (DOMA), enacted by Congress in 1996 and signed into law by President Clinton, defines marriage as a union between a man and a woman and prevents the federal government from recognizing same-sex marriages. The Wall Street Journal reports that a "legal battle over a law that denies federal benefits to married gay couples is headed to a federal appeals court in Massachusetts, the first state in the nation to legalize gay marriage... Paul Clement, the Washington lawyer who argued before the U.S. Supreme Court this week on behalf of 26 states that oppose Obama's health care law, will argue on behalf of the bipartisan group in the DOMA case. Clement did not return a call seeking comment Friday." In legal briefs filed in court, Clement argues "Congress has multiple rational bases for preferring a uniform federal definition over a patchwork, so DOMA should survive unless there is something categorically different about marriage. There is not. Congress has ample power to define the terms used in federal statutes to apportion federal benefits and burdens. Any other rule would turn the Supremacy Clause and our entire constitutional structure upside down." Paul Clement is right, but his argument warrants further analysis. In order to understand the basis of this appeal, it is important to understand why District Court judge in Boston declared DOMA unconstitutional. 


The Boston Globe reported in July 2010 that a "federal district court judge in Boston today struck down the 1996 federal law that defines marriage as a union exclusively between a man and a woman. Judge Joseph L. Tauro ruled that the federal Defense of Marriage law violates the Constitutional right of married same-sex couples to equal protection under the law and upends the federal government’s long history of allowing states to set their own marriage laws."


"This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status," Tauro wrote. "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state." The Justice Department had argued that Congress and President Clinton had a legitimate interest in preserving marriage as a heterosexual institution in relation to relevant federal laws. Yes, that's right.  Attorney General Eric Holder's Justice Department, before Obama decided to abandon defending the law in Court.


In February 2011 the Justice Department made an astonishing announcement. The Justice Department said they shall refuse to defend the Defense of Marriage Act from legal challenges because, in the words of a letter sent from Attorney General Eric Holder to House Speaker John Boehner, the "President of the United States has made the determination that Section 3 of the Defense of Marriage Act ('DOMA')... violates the equal protection component of the Fifth Amendment." If the federal government is disallowed from defining marriage (based on "equal protection") for purposes of federal benefits and administration as between man and woman, I don't see why State traditional definitions of marriage should be able to survive the 14th Amendment Equal Protection Clause challenges already taking place either. In other words, by taking this position, the White House has effectively endorsed interpreting the Constitution as requiring the redefinition of marriage to include homosexual couples. This position means not only that Obama has effectively flipped on his personal position on gay marriage, but really supports the redefinition of marriage as a matter of Constitutional law at all levels of government, local or federal. He is advocating warping the Constitution to require this extreme position, despite it clearly not being the original meaning of any Constitutional provision or even being required by any Supreme Court precedent.


However, when the Department of Justice was still defending DOMA, the Judge refused to accept their arguments in its defense.  He instead attempted to paint his ruling as both a Tenth Amendment ruling protecting the State's power to create its own marriage laws, and a matter of the Fourteenth Amendment's Equal Protection Clause which says States must provide "equal protection of the laws." Kris Mineau, president of Massachusetts Family Institute correctly called this ruling “another blatant example of a judge playing legislator.” Mineau said in a statement that “same-sex marriage activists have tried time and time again to win public approval of their agenda, and they have failed each time. This is why their strategy is to force same-sex ‘marriage’ through judicial fiat, as they did here in Massachusetts and other states.” This is a troubling but not entirely new trend as the federal judiciary refuses to faithfully apply the Constitution and instead substitutes its own will for that of the legislature and the original meaning of the Constitution itself. But even more, the ruling is ridiculous because DOMA was meant to protect the State ability to determine its own policy on marriage, to allow for different States to maintain their own traditional marriage laws without having to change their own rules to accommodate a marriage from a State that allows gay marriage. It was meant to stop one State from having to apply another State's law which defines marriage as including homosexual couples. This is a longstanding principle regarding conflicts of law between States when there is a conflict in regards to a matter of legitimate public policy. This is further permitted despite the Full Faith and Credit Clause because Congress is permitted under that Clause to prescribe "the Effect" to be accorded to the laws of a sister State. Furthermore, DOMA does not even deal with the right to marry itself, but rather the right to receive federal benefits. DOMA simply stated that in relation to federal laws such as those regarding federal benefits, marriage was to be accorded its traditional meaning. However, States are still completely free to redefine marriage if they so choose, and to use their own funds as they wish. Federal law not recognizing a certain subset of marriages that appear in a certain subset of the States for the purposes of federal funds is not a violation of the Fourteenth or the Tenth Amendments. It is not a violation of the Fourteenth Amendment because DOMA applies the longstanding definition of marriage, which in fact predates American law itself, equally to all applicable in matters of federal benefits. It cannot possibly be a Tenth Amendment issue because it is not State funds that are even at play and DOMA is in no way interfering with the State ability to define marriage for purposes of State law.


The Tenth Amendment is too rarely cited by the federal courts in cases even though it should be cited often, but on the rare occasion that it is cited, such as by Judge Tauro,  it is done in a way that simply makes no sense at all. That DOMA does not deal with the right to marry itself (which is clearly a State issue) is actually easily demonstrable. President Bill Clinton himself said on September 20, 1996, just one day before signing the Act, "I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms 'marriage' and 'spouse'. This legislation does not reach beyond those two provisions." DOMA's Section 3 is the portion that specifically deals with the definition of marriage for the purposes of federal law. All Section 3 actually states is that in relation to federal laws, such as those regarding federal benefits, marriage was to be accorded its traditional meaning. 


But the administration has taken a radical new view, a view that even the Supreme Court has so far been reluctant to endorse. The Department of Justice argues that laws challenged on the basis of a claim of sexual orientation discrimination must be subject to "heightened scrutiny" rather than "rational-basis." The Justice Department concluded its letter to House Speaker John Boehner abandoning DOMA's defense, leaving it to House Republicans to then bring in the needed counsel to support the law in court, by saying Holder "will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3." The phrase "heightened scrutiny" has usually been used interchangeably with "intermediate scrutiny" which is applied to laws dealing with gender, but it is unclear if the two are actually legally interchangeable. Further, the highest level of scrutiny is afforded to laws dealing with race, known as "strict scrutiny." What is clear from the letter is that the Obama administration has declared gays a "suspect class" and any law that can be seen as discriminating against gays should therefore face a heightened level of review in the same way as laws dealing with gender, or perhaps even race (and this is already seen by the constant comparisons of interracial marriage and Loving v. Virgnia with gay marriage on the part of advocates for the redefinition of marriage in court and in the public sphere). It is taking the position that there is no difference between one's gender and sexual preference, or perhaps even one's race and sexual preference. The ramifications of this notion are quite boundless. It would certainly apply to marriage at the State level as well, and if actually taken to its logical conclusion far beyond that. Traditional values as they relate to sexual mores would now be completely denigrated to the same level of sexism or racism, and this would be enshrined into Constitutional law. It would essentially treat traditional moral values the same way as misogyny or white supremacy. To think this would not have wide effects and ramifications beyond just the definition of marriage is to not understand what is truly taking place in advocating this shift in the legal landscape.


Let us hope therefore that the First Circuit Court of Appeals rejects the arguments of the federal District Court Judge in Boston, and those being advanced by the Obama administration's Justice Department. And they should do this for one simple reason: They have no basis in the United States Constitution. Tweet