Doma

[Accountable]

A beautiful editorial. Mr Will shows the bipartisan hypocrisy of the DOMA discussion.



DOMA is an abuse of federalism

By George F. Will, Published: March 20

“nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.

— U.S. Supreme Court,

Sherrer v. Sherrer (1948)

The Defense of Marriage Act (DOMA) is an exception to the rule that a law’s title is as uninformative about the law’s purpose as the titles of Marx Brothers movies (“Duck Soup, “Horse Feathers, “Animal Crackers) are about those movies’ contents. DOMA’s purpose is precisely what its title says. Which is why many conservatives and liberals should be uneasy Wednesday when the Supreme Court hears arguments about its constitutionality.

Conservatives who supported DOMA should, after 17years’ reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.

DOMA, which in 1996 passed the House 342 to 67 and the Senate 85 to 14, defines marriage for the purpose of federal law as a legal union between one man and one woman. Because approximately 1,100 federal laws pertain to marriage, DOMA’s defenders argue that Congress merely exercised its power to define a term used in many statutes. But before 1996, federal statutes functioned without this definition, which obviously was adopted for the “defense of marriage against state policies involving a different definition. “Before DOMA, an amicus brief submitted by a group of federalism scholars notes, “federal law took state law as it found it.

The question now is whether DOMA is “necessary and proper for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. This subject is a state responsibility, a tradition established and validated by what can be called constitutional silence: The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The amicus brief takes no position on same-sex marriage as social policy. Rather, it addresses a question that should obviate the need to address whether DOMA violates the constitutional guarantee of equal protection of the laws. The threshold question is: Does the federal government have the power that DOMA’s preamble proclaims, the power “to define and protect the institution of marriage?

DOMA’s obvious purpose is, as the scholars’ brief says, “to reject state governments’ policy judgments. Its purpose is to endorse, and to some extent enforce, the traditional understanding of marriage. The scholars’ brief says:

“Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the states’ policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers.

Ernest A. Young of the Duke Law School, the principal author of the federalism brief, says the operation of DOMA cannot help but burden states because “federal and state law are pervasively intertwined. To understand the harm that could be done by an unlimited federal power to define the terms of domestic-relations law, Young recalls when a few states, venturing beyond the national consensus, began experimenting with no-fault divorce. Suppose, Young says, Congress passed a statute refusing recognition, for purposes of federal law, of any divorce where neither party made a showing of fault:

“The couple would continue to be treated as married for purposes of federal income tax, health care programs and veterans’ benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law.

As the scholars’ brief says, DOMA “shatters two centuries of federal practice by creating “a blanket federal marital status that exists independent of states’ family-status determinations. Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. By striking down DOMA — by refusing to defer to Congress’s usurpation of states’ powers — the court would defer to 50 state governments, including the 38 that today prohibit same-sex marriage.

Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.

[Snooz]

Maybe I'm naive but I don't understand why there has to be a law about this at all, state or otherwise.

[Accountable]

SnoozeAgain;1422999 wrote: Maybe I'm naive but I don't understand why there has to be a law about this at all, state or otherwise.
Thank you. My thought exactly.

[Accountable]

Dammit! I heard an audio cut on the radio coming home and can't find it online. During today's arguments one of the justices said something about standing (meaning this case might not even be a question for the SCOTUS) and something about gay marriage not being around for long enough for them to make a decision about it. That has ZERO to do with whether the case in question violates the constitution.

[Accountable]

Doh! :yh_doh That's the Prop 8 argument, not DOMA.

Supreme Court of the United States

Still, it's the same subject.

[Wandrin]

Since the IRS has differentiated (and charged differently) for those filing as "married", hasn't the federal government been involved with marriage issues for a long time? Social Security also differentiates. Should that be considered precedent?

[Accountable]

Wandrin;1423316 wrote: Since the IRS has differentiated (and charged differently) for those filing as "married", hasn't the federal government been involved with marriage issues for a long time? Social Security also differentiates. Should that be considered precedent?
While it's true that the federal gov't has used marital status for many things, it has never tried to dictate any criteria or definition, other than DOMA. Indeed, our Constitution prohibits such an action with the Tenth Amendment. DOMA is clearly unconstitutional. It will be interesting to read the opinions.

Here are the arguments:

http://www.supremecourt.gov/oral_argume ... ent=12-307

[Wandrin]

It will be interesting to see which of the various options the court decides on. I'm sure that whatever they decide there will be arguments about it.

[Accountable]

No doubt!

I always wonder why some people want the Supreme Law of the Land (the Constitution) to be malleable and change with the whims of society, yet have no problem with speed limits & stop signs meaning the same thing year after year.

[Wandrin]

I'm not sure that is a valid comparison. I look at it more like fixing oversights and mistakes, such as slavery, equal rights, women voting, etc. It would be a lot simpler if the constitution had been written with equal rights for all. Now that the federal government stuck themselves in the middle of it by adding marriage clauses to taxation, SS, and other programs and private industry used that for special rights for the married (hospital visitation, insurance, etc.) they find themselves in a bind that they created. It has happened before and will probably happen again. Lack of foresight?

[Accountable]

Slavery: Thirteenth, Fourteenth, and Fifteenth Amendments

Women Voting: Nineteenth Amendment

Equal Rights: This is arguably implicit in the Constitution itself in that it doesn't limit any restrictions it places on the federal gov't to only certain groups of people. Until the listed amendments were installed, those determinations were left to each state. I'm not convinced that equal protection under the Constitution fall into the same category, though I can understand people wanting an amendment if only for clarification.

I disagree that the voting rights amendments could be described as fixing oversights. They changed the original text of the Constitution to reflect changes in our culture. This is the very purpose of the amendment process. We don't need to try to interpret or reinterpret the original words so that they fit the current day. We can CHANGE it. This is the foresight that the authors did not lack.

The Constitution never mentions marriage. If this was an oversight, then we need to add an amendment to address it. Unless and until we do that, DOMA cannot be legitimately constitutional.

[LarsMac]

Fortunately, and due to the Founders' foresight, It is not easy to amend the Constitution.

Personally I do not think such things belong in the constitution. It would be nice to be able to depend upon the grace and understanding of the populace to allow all people to be treated fairly under the laws of the nation.

No church, religious organization, or other group of people should be allowed to dictate how non-members live their lives.

[Accountable]

I agree.