Marriage is under hostile attack in the Federal courts – and that attack will succeed if the champions of marriage do not rise to defend this ancient and honorable institution.
The United States House of Representatives looks like it is ready to defend marriage (and its own constitutional powers). More defenders of marriage are desperately needed, however. Some of them are now reading this article.
A federal district judge in Massachusetts held last year (in Gill v. Office of Personnel Management) that the federal Defense of Marriage Act is unconstitutional. DOMA contains just two substantive sections, one of which defines marriage (for purposes of federal law) as “only a legal union between one man and one woman as husband and wife.” That definition was held unconstitutional, although it conforms to millennia of precept and practice in every corner of the globe, and, at the time of its enactment in 1996, it was identical to the laws of the 50 States.
The Obama Administration’s Department of Justice recently announced that it will no longer defend DOMA. Good riddance, some say. What formerly was loosely called the Department’s “defense” was flaccid, grudging, apologetic. One of America’s most distinguished professors of law, Richard Epstein, wrote in Forbes magazine that the Department’s illusory “defense” was so pathetic that it “looks almost like collusive litigation.” (A few years ago, the Department of Justice vigorously defended DOMA, but a presidential election changed all that.)
In reaching his misguided conclusion that DOMA is unconstitutional, the federal judge accused Members of Congress of ignorance, foolishness, bigotry, and mendacity. Is that an exaggeration? No.
When DOMA was passing through Congress in 1996 it was accompanied by a report written by the House Judiciary Committee. That report contained four rationales for the Act, “ defending and nurturing the institution of traditional, heterosexual marriage;  defending traditional notions of morality;  protecting state sovereignty and democratic self-governance;  preserving scarce government resources.”
In striking down DOMA, the federal judge said that none of the four rationales (or any others) made any sense. He held that DOMA was “arbitrary or irrational.” Statutes that are irrational, in the eyes of the judiciary, are not constitutional.
Can it be possible that limiting marriage to the union of a man and woman is totally irrational? One would have thought that the whole history of the Western world (to say nothing of 200 years of American law) testified to the wisdom of man-woman marriage; but no, limiting marriage to the union of a man and woman is (according to this judge) so repugnant to the Constitution that it must be forbidden in federal law.
If DOMA cannot be explained by reason, then what does explain it? The judge’s answer: irrational prejudice. “When the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis.” Congress was not trying to protect marriage, he said, but “to disadvantage a group of which it disapproves.” Statutes that are based on naked bigotry, in the eyes of the judiciary, are not constitutional.
Congress and the American people should not tolerate this sort of libel from a federal judge. Defending man-woman marriage (which is the law of the National Government and about 90 percent of the States) is not an act of intolerance. It is an act of sober judgment. The House Report said, “At bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing.”
Marriage integrates the sexes, it encourages responsible procreation, it links children with their biological parents, and it helps guarantee that boys and girls are raised in households with adult men and women, their own fathers and mothers. Does the Constitution of the United States forbid this sexually complementary institution? God forbid!
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This article is a quick summary of a letter and memorandum that Mr. Oliphant and Professor Robert A. Destro sent to the U.S. House of Representatives. The full texts of those documents may be found at www.alliancealert.org (letter) and www.alliancealert.org (memo). Mr. Oliphant, a lawyer, is a Research Fellow with the Marriage Law Project, Columbus School of Law, The Catholic University of America, in Washington, D.C. Robert A. Destro, a professor of law at the school, is the Principle Investigator at the Marriage Law Project.