Law and Marriage

Law and Marriage
Cal Thomas
7-13-10

A federal judge in Boston has ruled that the Defense of Marriage Act (DOMA) passed by Congress (427 members voted in favor) and signed into law by President Clinton in 1996 cannot take precedence over a Massachusetts law allowing same-sex marriage. The ruling again raises serious questions about the origin and purpose of law. But before we get to that larger question, the "logic" of Judge Joseph L. Tauro's ruling should first be examined.

Judge Tauro's decision flies in the face of what the federal government has claimed and is claiming in at least two other significant cases. In 1973, the Supreme Court struck down all state laws restricting a woman's right to have an abortion. In its lawsuit against Arizona's new immigration law, the Department of Justice claims federal law (which the feds are not enforcing) trumps state law.

So let's see: state laws are fine when they promote the interests of the ruling liberal and cultural elites, but they are to be ignored, or overturned, when they do not promote the objectives of the ruling liberal and cultural elites. Is that it? How can the federal government have it both ways?

A New York Times editorial says of DOMA "There is no rational basis for discriminating against same-sex couples." Really? Has the newspaper forgotten the federal government's "discrimination" against Utah when it forbade the territory from entering the Union until it outlawed polygamy? In 1878, the Supreme Court declared in Reynolds v. United States that polygamy was not protected by the Constitution. If the federal government could reject polygamy then as a means of promoting the general welfare, why can't it block attempts to redefine marriage now? If marriage is re-defined by courts, what is to stop anyone from declaring a "right" to any relationship they wish to enter and demanding "equal protection" under the Constitution?

Now to the larger question of law, which is also being re-defined. During her confirmation hearings, Elena Kagan said she loved the law. Too bad no one asked her which law she loves and what is law's purpose? Law is meant to conform humans to a standard that preserves the cultural and moral order. The purpose of government is to "secure" unalienable pre-existing rights about which Thomas Jefferson wrote in the Declaration of Independence (a document Kagan dismissed as irrelevant to the Constitution, though it is the Constitution's moral and philosophical foundation). Government is not supposed to create new rights like national health care, or same-sex marriage.

The Times editorial dismisses the overwhelming approval for DOMA as a "wedge issue" during an election year. In fact, it reflected the principled position not only of a vast majority of members of Congress, but also the position of the public, which has almost universally rejected attempts to legalize same-sex marriage. In 2004, 11 states had ballot measures preserving marriage as between opposite sex couples. All passed. In 2008, three states had gay marriage ballot initiatives. Two passed. In California, a measure to overturn the State Supreme Court's earlier 4-3 decision upholding the constitutionality of a legislative ban on same-sex marriage was approved by 400,000 votes, or 52 percent of those voting.

Marriage re-definers demand acceptance for their position that morality, as well as right and wrong, are to be determined by polls. If polls show the public disapproving of behavior the elites favor, the elites ignore majority opinion and seek to shove it down our throats anyway, because, you see, only they can be right. The rest of us have the equivalent standing of 1950s segregationists. Anyone arguing for tradition is branded a bigot, a label that is supposed to end all discussion, while the labeled one is exhausted trying to prove a negative.

Judge Tauro's ruling will likely be overturned on appeal, but that won't stop the marriage re-definers. In a morally exhausted society, they just might succeed. Polygamists were 130 years before their time.
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Kagan Must Answer Question About DOMA
Phyllis Schlafly
7-13-10

If Elena Kagan is confirmed for the Supreme Court, it will not matter that Martha Coakley failed to win her bid to fill out Ted Kennedy's Senate seat. Kagan's 30-plus years as one of nine votes on the Supreme Court is far more important than Scott Brown's three years as one of 100 votes in the Senate.

A litigation time bomb set by Martha Coakley -- who remains state attorney general despite losing her Senate race -- exploded last week in a Massachusetts courtroom. Federal Judge Joseph Tauro, who received his lifetime appointment from Richard Nixon in 1972, upheld Coakley's position in a lawsuit she filed a year ago against the federal Defense of Marriage Act (DOMA)

Responding to written questions by Republicans on the Senate Judiciary Committee, Kagan answered "yes" when asked whether she had "reviewed briefs" and/or "participated in some discussions" concerning the lawsuit that resulted in last week's anti-marriage decision. Kagan should be called back to answer more questions about her role in that case.

What position did she take on the DOMA case that resulted in overturning that law, and why didn't she defend it more aggressively? Would she recuse herself when this case, or a similar marriage case, reaches the Supreme Court?

The one-man, one-woman definition of marriage is enshrined in the laws of 45 states, and has been upheld by popular vote in 31 states from Maine to Hawaii. The 1996 federal law attacked by Coakley applies this same definition to the 1,138 federal laws that refer to marriage.

It was only six months ago that the charismatic Republican Scott Brown defeated the dour feminist Martha Coakley for the U.S. Senate seat that had been held by the Kennedy family for 58 years. It was a humiliating repudiation of liberalism in its Massachusetts homeland.

Brown's election meant that Democrats lost their filibuster-proof 60-vote Senate majority for the remainder of Obama's presidential term. Pundits predicted that meant the end of Obamacare, cap and trade, card check, comprehensive immigration reform and the rest of the "hope and change" agenda.

But the Obama-Pelosi liberals are here for the "long march," and they quickly regrouped their forces. Using unprecedented parliamentary chicanery to bypass Senate rules, they managed to get another version of Obamacare to the president for his signature at the end of March.

As soon the ink was dry but before congressmen had actually read the over-2,000-page bill, Democrats tried to pretend the debate was over because Obamacare is now the "law of the land." But polls continue to show that 60 percent of Americans oppose Obamacare, including 52 percent who "strongly favor repeal."

Missouri just became the 21st state to sue on behalf of its citizens for a ruling that Obamacare's central provision -- the mandate on individuals to buy health insurance -- is unconstitutional.

Judge Tauro's written opinion has already been criticized as illogical, even by liberals who support same-sex marriage. But liberal legal scholars are already hard at work on developing a better rationale because they are so deeply invested in getting rid of DOMA.

As Justice Scalia wrote about an earlier case, the new DOMA decision is "the product of a law-profession culture that has largely signed on to the so-called homosexual agenda." Kagan on the Supreme Court would permanently entrench what Scalia called the "law profession's anti-anti-homosexual culture," by reading it into the U.S. Constitution.

Elena Kagan has been called Obama in a skirt. Her youth was steeped in the notoriously radical politics of the Upper West Side of New York City, absorbing "progressive" views that are reflected in the theses she wrote at Princeton and Oxford. If confirmed, she would be the sixth justice on the current Supreme Court who was born in New York or New Jersey and the ninth who attended Harvard or Yale law schools.

The American people were hoping the next Supreme Court justice would be conservative. According to a Fox News poll in April, 52 percent said they wanted President Obama to nominate "someone who is more of a conservative" and only 29 percent wanted "someone who is more of a liberal."

We hope the senators realize that their vote on Elena Kagan is crucial because she could be the deciding vote on the constitutionality of both DOMA and Obamacare. Despite all her non-answers to softball questions in the hearing, there is no question about how she will vote.

Abe Lincoln warned us that "if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
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To read another article by Cal Thomas, click here.