ERLC analysis makes case for DOMA, traditional marriage
- Aug 3, 2011 - 1 -
The U.S. Justice Department (DOJ) created waves in February by announcing it would no longer defend the age-old definition of marriage as defined in the Defense of Marriage Act (DOMA). In July, it went a frightful step further by advocating partial repeal of the 1996 law. Weeks later, the Senate held a hearing aimed at repealing DOMA outright, while lawmakers in both houses of Congress have introduced bills to that end. And on the judicial front, DOMA faces a growing number of legal challenges.
It is against this unsettling backdrop that the Ethics & Religious Liberty Commission releases an in-depth analysis on DOMA (PDF – 233 KB). Authored by interns Evan Daniels and Philip Williamson, the analysis seeks to answer central questions of the marriage tug-of-war, such as: What is DOMA? Is it good policy? And do the DOJ’s legal arguments against DOMA hold water? Their conclusion: DOMA, which prevents states with legalized same-sex “marriage” from forcing other states to recognize such “marriages” and defines marriage for federal purposes as the union of one man and one woman, is “not only good policy, but is also legally and constitutionally sound.”
The ERLC’s DOMA analysis, entitled The Defense of Marriage Act (DOMA) as Sound Public Policy and Responding to the Department of Justice Advocacy of DOMA’s Partial Overturn, is authored by interns Evan Daniels and Philip Williamson. To read the analysis, please click here. (PDF – 233 KB)
At primary issue in the ERLC analysis is the DOJ’s attack on DOMA in defense of a lesbian woman who has filed suit over the Office of Personnel Management’s refusal to enroll her same-sex partner in a “spousal” benefits plan. On July 1, the DOJ submitted a brief to a district court in California siding with plaintiff Karen Golinski, who “married” her lesbian partner in California when same-sex “marriage” was legal during a six-month period in 2008 prior to voters’ passage of a marriage amendment to the state constitution.
Citing the U.S. Constitution’s Equal Protection Clause, the DOJ argued that DOMA—specifically the section defining marriage for federal purposes—is unconstitutional.
The DOJ brief points to four factors that must be met for homosexuals to be granted “heightened scrutiny,” or special protective status under the law, and DOMA’s partial repeal: homosexuals have suffered a history of discrimination; they exhibit immutable characteristics; they suffer minority status or political powerlessness; and DOMA has no legitimate policy objective. “Legally insufficient” is how the ERLC analysis describes the arguments.
Neither “homosexuality” nor “sexual orientation,” for that matter, is even defined by the DOJ, an omission of critical importance. What also seem to be lost by the DOJ, as the analysis notes, are the reasons Congress overwhelmingly approved—347-67 in the House, 85-14 in the Senate—and President Clinton signed DOMA into law. It was not, in fact, to discriminate against homosexuals, but primarily to protect children.
“[C]ivil society,” as a House committee report noted prior to DOMA’s enactment, “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. Simply put, government has an interest in marriage.”
And as the ERLC analysis points out, “[W]hen DOMA was enacted, it was not really new law at all, but was merely a codification of what federal law had recognized for centuries—that marriage is the union of one man and one woman.”
The DOJ’s advocacy of a partial repeal of DOMA comes just as New York State became the sixth state, along with the District of Columbia, to legalize same-sex “marriage.” Such couples began “marrying” in the Empire State on July 24. In each of the seven U.S. jurisdictions with an expanded definition of marriage, a court or legislature forced the decision upon the citizens. Meanwhile, traditional marriage, when presented on ballots for voters to decide, has a flawless record: 31 of 31.
But if, as some legal scholars note, a federal court finds the DOJ arguments in California persuasive, then it could be just a matter of time before DOMA is dismantled and each of the 44 states with protections for traditional marriage is forced to validate same-sex “marriage.”
With the Justice Department, a sizeable wing of lawmakers, and multiple same-sex “marriage” supporters all vying to be the catalyst in overturning the Defense of Marriage Act, concerned citizens ought to know why the law is sound and why marriage matters. Civil society does, after all, have compelling reasons to support one-man, one-woman marriage.
The ERLC’s DOMA analysis, entitled The Defense of Marriage Act (DOMA) as Sound Public Policy and Responding to the Department of Justice Advocacy of DOMA’s Partial Overturn, is authored by interns Evan Daniels and Philip Williamson. To read the analysis, please click here. (PDF – 233 KB)
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1 On Aug 16th, 2011, at 3:09am, Willenia V. Young wrote:
This article should be printed in mainline newspapers to help educate the public of the challenge by the Dept. of Justice that the section of DOMA defining marriage for federal purposes is unconstitutional. We need to get the work out and also contact our Congressmen and express our outrage.