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Should Obama Abandon Defense of Marriage Act?

By Chuck Donovan

The New York Times continues to lower the threshold of responsibility in matters marital, and yesterday’s editorial calling on the Obama Administration to abandon the Defense of Marriage Act (DOMA) is the latest—and perhaps oddest—example.

It is odd first and foremost because the Obama Justice Department’s defense of DOMA maintains a pattern that a distinguished scholar has termed “almost like collusive litigation”—that is, where presumed adversaries are actually seeking the same result. The Obama Administration is indeed all but abandoning DOMA—but not in the forthright manner that would result in a real battle in the courts where both sides of the controversy are represented.

The Times’s editorial writers would like to see DOMA tossed out because they believe that traditional marriage is an unconstitutional expression of “blatant discrimination.” They acknowledge, without giving the disavowal much credit, that Justice Department lawyers “have sought to distance the administration from Congress’s justifications for the marriage act, one of which was to ‘encourage responsible procreation.’” But this disavowal goes to the heart of the case for man–woman marriage and to a justification that has been enormously compelling to other courts that have considered lawsuits over the definition of the marital union. Society’s concern that children are raised in the cradle of married love between a mother and father has been shown time and again, by studies conducted without partisan bias, to be of lifelong, multi-generational importance.

As Sherif Girgis, Robert P. George, and Ryan T. Anderson argue in the Harvard Journal of Law and Public Policy, “Marriage is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act—by the kind of activity that is by its nature fulfilled by the conception of a child.” Because of this “natural orientation to children,” they write, it is not surprising that “children fare best on virtually every indicator of well-being when reared by their wedded biological parents.” In writing DOMA, Congress took special note of this truth—and it did so with special authority, being the branch of government that, over time, has committed the most massive taxpayer resources to ameliorating the harms to children from being raised in homes with a missing parent—routinely the father.

To defend traditional marriage for the sake of today’s and tomorrow’s children is not merely rational—it is irrational not to.

At the same time, the Obama Justice Department is ceding ground on DOMA by refusing once again, in its most recent legal brief, to cite Baker v. Nelson, the most apt precedent in federal case law. The 1972 case involved two men in Minnesota who applied for a state marriage license and were rebuffed. They lost at the Minnesota Supreme Court and then took their case into the federal judiciary. The ultimate result was a “summary disposition” by the U.S. Supreme Court and a single-sentence ruling that the suit was dismissed for “lack of substantial federal question.” In other words, the U.S. Supreme Court could not find room under the U.S. Constitution to validate the two men’s claims against Minnesota’s marriage policy. Baker v. Nelson should be binding precedent with respect to DOMA. To the Obama Justice Department, the case does not even exist.

The New York Times editorial writers apparently want the Obama Administration to go beyond collusion to surrender. At least one late-night talk show host believes that the full embrace of same-sex marriage is President Obama’s actual position. Whatever the merits of that observation, Congress has its own interest—at root, a nonpartisan interest—in seeing that the legislation it adopts is given a full and professional defense by executive branch lawyers who have taken oaths to do precisely that. The Times concludes that, in the absence of a good defense from the attorneys at the Justice Department, “if conservatives in Congress want to enter the case to argue otherwise, so be it.” On that final note, the Times has a point—but it applies to every member of Congress, and not just conservatives, because a pick-and-choose attitude at the Justice Department can come back to bite lawmakers of every stripe.


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