Two opinions issued by Massachusetts federal Judge Joseph L. Tauro last Thursday represent only the most recent example of egregious judicial activism.
In them, he declared unconstitutional the federal definition of “marriage”—the union of one man and one woman. This traditional definition prompted the judge to opine that “there exists no fairly conceivable set of facts that could ground a rational relationship between [the federal definition of marriage] and a legitimate government objective.”
Thus did one of the bright lights of our federal judiciary hold that marriage as it has been defined for at least two millennia cannot be justified under any conceivable factual scenario. That wasn’t all: He added that “it is only irrational prejudice that motivates the [traditional definition of marriage].” Apparently, male-female biological, psychological, and emotional complementary has never caught the judge’s notice.
So how did we get to this bizarre, insulting opinion.
In the early 1990s “marriage” was defined as the union of one man and one woman all across America. However, great concern arose nationally when the Hawaii Supreme Court appeared to be on the verge of declaring its traditional marriage law unconstitutional. The fear lay in the possibility that a same-sex married couple from Hawaii might move to another state and successfully demand recognition of the Hawaii union under the Full Faith and Credit Clause of the U.S. Constitution.
In response, the Defense of Marriage Act (DOMA) was passed overwhelmingly in 1996 and signed into law by President Clinton. Most famously, it modified the reach of the Full Faith and Credit Clause so each state could determine its own marriage policy without concern that another jurisdiction—like Hawaii—could use the U.S. Constitution to overturn it. At present, 29 states have adopted constitutional amendments to explicitly define marriage as the union of a man and a woman. Twelve additional states have statutory laws restricting marriage to this historic and natural definition. Thus, a total of 41 states explicitly define marriage traditionally either through their state constitutions or by statutes.
DOMA contained another provision, however, that defined “marriage” and “spouse” for federal purposes. It was this statutory enactment that was the subject of the legal challenges in Massachusetts.
This simple provision reads: “In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” This definition is neither brimming with prejudice nor irrationality.
The House report accompanying DOMA noted that “‘marriage’ appears in more than 800 sections of federal statutes and regulations, and the word ‘spouse’ appears more than 3,100 times.” It added that with “very limited exceptions, these terms are not defined in federal law.”
The report also made clear that this federal definition would not “have any effect whatsoever on the manner in which any state…might choose to define these words.” No existing federal provision using the two terms had ever been enacted with anything other than the traditional meanings in mind.
Therefore, DOMA was not changing the law. Rather, with Hawaii seemingly preparing to redefine “marriage,” Congress believed the federal meaning of the terms should be made explicit.
DOMA’s constitutionality was widely accepted in 1996. In a letter to House Judiciary Committee Chairman Henry Hyde, Assistant Attorney General Andrew Fois of the Clinton Justice Department concluded that DOMA “would be sustained as constitutional” and that there were insufficient legal issues raised to “necessitate an appearance” by a Justice Department representative at the bill’s hearing.
In stark contrast, President Obama’s Justice Department has been undermining the law in its filings since the summer of 2009. The current administration has told various courts that it favors repeal of the law and considers DOMA “discriminatory.” It provided a primer in a footnote on the current literature showing that same-sex parenting is every bit the equal of male-female parenting. With a legal defense like that, who needs enemies?
The two decisions by Judge Tauro were so poorly reasoned that most observers believe they will certainly be appealed by the Obama Justice Department. Based on their previous statements, however, any effort to have Tauro reversed is likely to be half-hearted. Thus, it will be up to private parties and the states that have acted pursuant to DOMA to defend the traditional marriage definition as friends of the court. One can only hope and pray that sanity will prevail at the court of appeals and the U.S. Supreme Court.