Forum – Is DOMA Unconstitutional?

The Watcher’s Council

Last week, the New York State Appeals Court ruled that the Defense of Marriage Act was unconstitutional.

The ruling itself was based on a very narrow criteria, since there was a plaintiff that obviously suffered financial damages because of a spousal deduction she would otherwise have received on the estate tax on her deceased partner’s estate as a result. But with the Supreme Court set to rule on the Constitutionality of California’s Proposition 8, this week the Council addresses the question: Is DOMA unconstitutional? How will the recent ruling affect coming Supreme Court ruling on Same Sex Marriage?:

The Independent Sentinel: I don’t want the federal government involved in this at all. I prefer it be a states’ rights issue. I feel the same way about abortion. I am opposed to big government and I am against changing the constitution for social issues.

I think DOMA will be found unconstitutional, but I think it should be found Constitutional on the basis of states’ rights and the right of people to choose.

I will become concerned about this issue if it begins to affect freedom of religion. Religions that only marry one man and one woman must be allowed to do so or I don’t think we can call ourselves free any longer.

I believe the only civil rights issue in this country is the abuse of African-Americans through slavery and decades of oppression. No other issue, not even an important social choice issue, should take away from that.

The Colossus of Rhodey: It seems the main problem the recent court ruling against DOMA has is with the law’s Section 3 which defines marriage *federally* as between a man and a woman. The ruling invoked “equal protection;” if the SCOTUS rules as the circuit court did, it will enshrine a right to collect benefits (from the feds) for legally married gay couples. BUT — it wouldn’t necessarily mean that the rest of DOMA would be stricken. The Act allows states to decide whether they want to recognize gay marriages (and those performed in other states), and a cursory reading of the Constitution’s Article IV shows that this part of the law *should be* constitutional re: the Full Faith and Credit Clause. The Clause notes that “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” In other words, those in favor of striking the entire law would have to demonstrate how Congress does *not* have the right to prescribe how its laws are enacted, or, in this case, why another state would *not* have the right to refuse to recognize a gay marriage performed in another state.

It will be difficult to guess what the SCOTUS will rule. If the states still get to decide the question of marriage, then could a gay couple still be able to collect federal benefits from a non-gay marriage state (if they were “married,” in a state which allowed such, but they didn’t actually *reside* in such a state)? If so, how and why? Or, can only those who were [gay] married in a state which allowed such unions be permitted to collect such benefits?

The Glittering Eye: There are two ways of answering that question. The answer in law is absolutely, positively not. But the practical answer is different. The practical answer is that whatever the currently sitting Supreme Court justices say is unconstitutional is unconstitutional.

I’m guessing that, considering that there’s a majority of sexual libertarians on the court, the present Court will strike down the DOMA.

The Noisy Room: Yes, DOMA is unconstitutional for the simple reason that its foundation premise, that government has any business moderating marriage, is fundamentally broken. DOMA falls into that broader fascist category of “good ideas enforced at gun point.” If a constitutional foundation can be found and established for the concept that government is somehow the appropriate arbiter of the act of marriage at all, then a case can be made for DOMA because to the degree that government brokers marriage, government must then define it. However, the constitution offers no support for what was at the time a cultural and religious construct which more modernly, has been annexed as one of the “proper functions” of government.

I don’t see any constitutional support for it and in fact, it plays into the concept that government can replace religion. And this is one of the greasier slopes on which one can embark. This goes further to a broader premise that government somehow owns “citizens,” or as the British prefer to call them, “subjects.” As the premise broadens, it encroaches on education (all your kids are belong to us) and “health and welfare.” We have to keep you healthy so you are productive, our revenue depends on it. This, then, “logically” flows into mandated morality, and while actual crime is a province of government, what you eat for breakfast, how you iron your shirts and with whom you spend your nights is not. See Atlas Shrugged.

So, although this is a blatant attempt to pander to the gay community by Obama, DOMA is not constitutional in my viewpoint. Marriage is a personal (or religious) act, not a government province.

Bookworm Room: Yes, I do believe that DOMA is unconstitutional. The Constitution does not contemplate marriage at a federal level. For that reason, it is a matter that, technically speaking, should be left to the states. Having said that, let’s get to the modern wrinkles. When the Constitution was ratified, the Founders could not have imagined same-sex marriage. It did not exist at the time. Had the notion existed, the Founders might have chosen to address marriage in the Constitution for one very specific reason: The full faith and credit clause, which obligates each state to recognize the duly passed laws of the other states. The problem with laws that provide fundamentally different definitions of marriage (such as those allowing polygamy or same sex marriage) is that, as people move from one state to another, they may be legally married in State A, but not in State B. Any subsequent property, child custody, or third party contract disputes become a nightmare.

With new definitions of marriage never imagined by the Founders, the correct way to deal with the issue is through a Constitutional amendment. If I could draft the amendment, I would remove “marriage” from government control and leave it solely to religious institutions to “marry” people. Government should have power over “civil unions,” and that power should be exercised in whatever way is most beneficial to advance state goals of economic stability, generational property transfers, and the overall best situation for children. Civil unions could certainly encompass same sex couples. I would be loath to extend civil unions to polygamy, though, because of the problems with economic stability and generational property transfers. (England, which legally recognizes polygamous marriages from Muslim countries, demonstrates that, in a Western culture, it’s hard for a single man to support multiple women. These polygamous families end up using welfare disproportionately.)

I’m deeply concerned that, if same sex “marriage” becomes a constitutional right, we’ll have a major constitutional clash between church and state, one that makes the current fight over funding abortion look like a kindergarten party. Think of it: In the Catholic faith, marriage is a sacrament. Can you imagine what will happen to the First Amendment freedom of religion if it crashes headlong into some new amendment mandating gay “marriage.” If, however, the state passes an amendment recognizing civil unions, churches can continue to marry whomever their doctrine recognizes.

Well, there you have it.

Make sure to tune in every Monday for the Watcher’s Forum. And remember, every Wednesday, the Council has its weekly contest with the members nominating two posts each, one written by themselves and one written by someone from outside the group for consideration by the whole Council. The votes are cast by the Council and the results are posted on Friday morning.

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