Will federal judges misuse the Constitution to take away the people’s right to vote for marriage? Two federal court cases on opposite coasts, one in Boston, the other in San Francisco, represent a new front in the culture wars, an effort by gay marriage advocates to use the federal Constitution to require recognition of same-sex marriage.
In California, marriage supporters are waiting nervously for the decision by Judge Vaughn Walker about whether to uphold Prop 8, which defined marriage as one man and one woman in the state constitution. Prop 8 was passed by a majority of Californian voters in 2008, and was upheld by the California Supreme Court. Thirty other states from Wisconsin to Louisiana have similar marriage protection amendments in their state constitutions. A ruling overturning Prop 8 would likely threaten marriage laws in all 45 states that currently reject same-sex marriage.
Judge Joseph Tauro, a federal judge sitting in Boston, last week ruled in two cases against the federal Defense of Marriage Act (DOMA) (Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Dept. of HHS). DOMA, passed in 1996 by overwhelming bipartisan majorities, defines marriage as one man and one woman for the purposes of federal law and clarifies that no state will be forced to recognize gay marriages performed in other states.
Judge Tauro’s twin rulings represents the first time a federal judge has ruled against the federal Defense of Marriage Act, the one federal law that protects marriage as the union of husband and wife, thus asserting the right of federal judges to overrule voters and their elected representatives on behalf of gay marriage. Legal experts agree that the judge’s core ruling, that Congress is not allowed to define marriage for purposes of federal law, is weak.
A series of federal court cases on polygamy back in the 19th Century clearly establish that the federal government has a right to define marriage for the purposes of federal law. America’s federalist system goes both ways: States are allowed to regulate marriage for the purposes of state law, but by the same token four judges in Massachusetts have no right to compel Congress to recognize gay unions as marriages for the purpose of federal law. Tauro leaned heavily on the 14th Amendment in both cases, charging that “equal protection” requires recognizing gay unions as marriages.
President Obama’s Justice Department sabotaged the defense of DOMA. This was a sham trial, in which both the parties attacked the law. The government attorneys under Obama charged with defending the law wanted it to be struck down.
Even the Washington Post noted how strange it is that Judge Tauro’s ruling never mentions the polygamy cases, and stranger still that apparently Obama’s Justice Department never raised the issue with him.
“In fairness to the judge, the Justice Department seems not to have presented these facts to the court, and they aren’t mentioned in the only historical document in the record before him, an affidavit from Harvard historian Nancy Cott from which Tauro quotes frequently,” noted Charles Lane in the Post.
But the blatant way in which Obama’s Justice Department “threw” the case is made even more blatant in the companion case, Gill v. OPM. When DOMA was passed, the legislation explicitly named four important purposes for the law. The Obama Justice Department repudiated them all as a rational basis for marriage law. As Judge Tauro’s ruling notes, “ The House report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.”
However, Judge Tauro went on, “For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly.”
Let me emphasize that again: The purposes of DOMA that were explicit in the statute, including “responsible procreation,” were rejected first not by the judge but by Obama’s Justice Department. The attorney general, speaking for the people of the United States, said that responsible procreation has nothing to do with the purpose of marriage.
Even at the time the DOJ brief was filed, gay legal scholars like Professor Dale Carpenter called this a “gift” to the gay-marriage side. The evidence is clear: the U.S. government under President Obama colluded with ultra-liberal Massachusetts Attorney General Martha Coakley to lose this case. (Yes, that Martha Coakley, the one Scott Brown defeated for the U.S. Senate.)
True to fashion, Obama’s misnamed Justice Department is refusing to say whether it will appeal the case. No doubt lawyers are trying to figure out how to prevent higher courts from reviewing and rejecting this weakly reasoned case.
In response, the National Organization for Marriage (which I helped found) is launching a 19-city Summer for Marriage bus tour to protest the judicial takeover of marriage.
“People have a right to vote for marriage, and we will not stand by and see activist judges or bought-and-paid-for politicians take away this right. We will fight back and we will win,” said Brian Brown, NOM’s president. He also calls for kicking off a new movement for a federal-marriage amendment, if the Supreme Court fails to uphold this basic civil right.
“Even some Republicans like Sen. John McCain and others voted against the FMA [Federal Marriage Amendment] because gay rights activists said it was unnecessary. Now just a few short years later, gay marriage advocates have filed not one but several federal court cases seeking to win from judges because they keep losing in the court of public opinion,” Brian said. “We call on Congress and the Supreme Court to protect the people’s right to vote for marriage.”
For more information on the bus tour and rallies at cities near you go to www.nationformarriage.org.