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  • Memo to the White House: Don't Stop, Start Defending DOMA

    The New York Times continues to lower the threshold of responsibility in matters marital, and yesterday’s editorial calling on the Obama Administration to abandon the Defense of Marriage Act (DOMA) is the latest—and perhaps oddest—example.

    It is odd first and foremost because the Obama Justice Department’s defense of DOMA maintains a pattern that a distinguished scholar has termed “almost like collusive litigation”—that is, where presumed adversaries are actually seeking the same result. The Obama Administration is indeed all but abandoning DOMA—but not in the forthright manner that would result in a real battle in the courts where both sides of the controversy are represented.

    The Times’s editorial writers would like to see DOMA tossed out because they believe that traditional marriage is an unconstitutional expression of “blatant discrimination.” They acknowledge, without giving the disavowal much credit, that Justice Department lawyers “have sought to distance the administration from Congress’s justifications for the marriage act, one of which was to ‘encourage responsible procreation.’” But this disavowal goes to the heart of the case for man–woman marriage and to a justification that has been enormously compelling to other courts that have considered lawsuits over the definition of the marital union. Society’s concern that children are raised in the cradle of married love between a mother and father has been shown time and again, by studies conducted without partisan bias, to be of lifelong, multi-generational importance.

    As Sherif Girgis, Robert P. George, and Ryan T. Anderson argue in the Harvard Journal of Law and Public Policy, “Marriage is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act—by the kind of activity that is by its nature fulfilled by the conception of a child.” Because of this “natural orientation to children,” they write, it is not surprising that “children fare best on virtually every indicator of well-being when reared by their wedded biological parents.” In writing DOMA, Congress took special note of this truth—and it did so with special authority, being the branch of government that, over time, has committed the most massive taxpayer resources to ameliorating the harms to children from being raised in homes with a missing parent—routinely the father.

    To defend traditional marriage for the sake of today’s and tomorrow’s children is not merely rational—it is irrational not to.

    At the same time, the Obama Justice Department is ceding ground on DOMA by refusing once again, in its most recent legal brief, to cite Baker v. Nelson, the most apt precedent in federal case law. The 1972 case involved two men in Minnesota who applied for a state marriage license and were rebuffed. They lost at the Minnesota Supreme Court and then took their case into the federal judiciary. The ultimate result was a “summary disposition” by the U.S. Supreme Court and a single-sentence ruling that the suit was dismissed for “lack of substantial federal question.” In other words, the U.S. Supreme Court could not find room under the U.S. Constitution to validate the two men’s claims against Minnesota’s marriage policy. Baker v. Nelson should be binding precedent with respect to DOMA. To the Obama Justice Department, the case does not even exist.

    The New York Times editorial writers apparently want the Obama Administration to go beyond collusion to surrender. At least one late-night talk show host believes that the full embrace of same-sex marriage is President Obama’s actual position. Whatever the merits of that observation, Congress has its own interest—at root, a nonpartisan interest—in seeing that the legislation it adopts is given a full and professional defense by executive branch lawyers who have taken oaths to do precisely that. The Times concludes that, in the absence of a good defense from the attorneys at the Justice Department, “if conservatives in Congress want to enter the case to argue otherwise, so be it.” On that final note, the Times has a point—but it applies to every member of Congress, and not just conservatives, because a pick-and-choose attitude at the Justice Department can come back to bite lawmakers of every stripe.

    Posted in Culture [slideshow_deploy]

    12 Responses to Memo to the White House: Don't Stop, Start Defending DOMA

    1. B Nelson says:

      The moment the opponents of gay marriage outlaw divorce, stop cheating on their spouses, and behave like good, moral Christians, is the moment they are allowed to beak off about the "sanctity" of hetero marriage.

    2. Andrew, VA says:

      Two questions:

      1) So married childless couples aren't really married?

      2) Where in the Constitution does it say anything about marriage — gay or straight?

    3. John, Rhode Island says:

      To your point Andrew — that's my whole problem with social cons and marriage. You tell me where in the Constitution, the document that social cons supposedly want to adhere to, it allows the gov to even involve itself in marriage, because I can't find it.

      Marriage is a religious act, and if a particular religion wants to have its own requirements about who they'll marry, etc., etc., then that's within their rights, but as far as the gov goes, marriage is no more than a social contract, and therefore the gov cannot nor should not care who enters into such contract, so long as they're entering of their own free will and are of consenting age to do so. Anything else should violate the equal protection clause of the Constitution.

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    5. Pingback: Ruth Institute Blog » So Now It’s Going To Be Collusive Litigation, Is It?

    6. Steven A. Sylwester, says:

      It is interesting to note that The New York Times chose not to include my following essay among the online comments to its February 13, 2011, editorial "In Defense of Marriage, For All" cited above by Chuck Donovan. I submitted my essay early enough that it could have been posted among the first twenty comments to the editorial.

      I introduced my essay by stating that I wrote it on November 22nd, 2010, as a comment to:

      Peter Lawler,

      Christians are the keepers of something — something very precious — something we are to give to others. Jesus said, “As you go, proclaim this message: ‘The kingdom of heaven has come near.’ Heal the sick, raise the dead, cleanse those who have leprosy, drive out demons. Freely you have received; freely give.” (Matthew 10:7-8 NIV)

      In the giving to others we are to do as children of God, Jesus said, “Do not give dogs what is sacred; do not throw your pearls to pigs. If you do, they may trample them under their feet, and turn and tear you to pieces.” (Matthew 7:6 NIV)

      Knowing God is difficult enough when one correctly uses and understands the many words that are universally recognized as accurate translations of the original languages of The Holy Bible. Those “many words” are sacred words, because they hold in themselves the mystery and the clarity of The Presence of God. It is no small and trivial thing that Saint John began his Gospel with these words: “In the beginning was the Word, and the Word was with God, and the Word was God. He was with God in the beginning. Through him all things were made; without him nothing was made that has been made. In him was life, and that life was the light of all mankind.” (John 1:1-4 NIV)

      Some Jewish mystics consider the unutterable Name of God to be all of the letters of the Torah together as one word, that is: all of the words of the Torah and the knowledge and the thoughts they express together in revealing God are an inseparable and holy Oneness. When Christians think of the Word that is Jesus, they should think like Jewish mystics, and they should defend those words that are descriptive of God.

      Saint John wrote:

      “And I heard, as it were, the voice of a great multitude, as the sound of many waters and as the sound of mighty thunderings, saying, “Alleluia! For the Lord God Omnipotent reigns! Let us be glad and rejoice and give Him glory, for the marriage of the Lamb has come, and His wife has made herself ready.” And to her it was granted to be arrayed in fine linen, clean and bright, for the fine linen is the righteous acts of the saints.

      Then he said to me, “Write: ‘Blessed are those who are called to the marriage supper of the Lamb!’” And he said to me, “These are the true sayings of God.” And I fell at his feet to worship him. But he said to me, “See that you do not do that! I am your fellow servant, and of your brethren who have the testimony of Jesus. Worship God! For the testimony of Jesus is the spirit of prophecy.” (Revelation 19:6-10 NKJV)

      The word “marriage” is not an abstract philosophical concept that is available for intellectualizing and nuance concoction. Ask yourself, sir: What is your purpose in your language gymnastic? Is it to open a door that should remain shut?

      There are wrongs in our society that need to be righted, and the fight for same-sex marriage rights reveals some of those wrongs. The solution offered in legalizing same-sex marriage is weak-minded, short-sighted, and simply wrong. No amount of clever wordplay can change that. But other solutions are possible.

      Please read my comment at:
      Then read:

      The law in America is a growing mess, and that mess grows and grows because the language we use is not being honored and respected. Consider:

      Saint John wrote:

      “I warn everyone who hears the words of the prophecy of this scroll: If anyone adds anything to them, God will add to that person the plagues described in this scroll. And if anyone takes words away from this scroll of prophecy, God will take away from that person any share in the tree of life and in the Holy City, which are described in this scroll.” (Revelation 22:18-19)

      To change the definition of the word “marriage” is to not heed Saint John’s warning. Wisdom dictates that we should heed the warning, for Saint Paul wrote: “Do not be deceived, God is not mocked; for whatever a man sows, that he will also reap. For he who sows to his flesh will of the flesh reap corruption, but he who sows to the Spirit will of the Spirit reap everlasting life.” (Galatians 6:7-8 NKJV)

      Steven A. Sylwester

      * * *

      I stand by my essay with ever greater resolve.

      In the New Testament letter to the Hebrews, it is written, "Marriage should be honored by all, and the marriage bed kept pure, for God will judge the adulterer and all the sexually immoral." (Hebrews 13:4 NIV)

      The argument against same-sex marriage cannot ever challenge the true love that two people of the same sex might genuinely have for each other. The plain truth and the given is this: any two people might love each other more than they love all others, and they might then choose to share the rest of their lives together in every way after they fall in love, and they might actually succeed in maintaining their love and devotion and fidelity to each other without fail until death finally parts them. True love is a beautiful thing that is worthy of celebration, encouragement, and joyful recognition. Shame and revulsion should never enter the public argument against same-sex marriage, because "true love" is an ideal — a striving that often fails in reality. It is a certainty that too many marriages end in divorce, and that some same-sex relationships are more loving and more committed than some heterosexual relationships are that have been publicly sealed in marriage. There should be no doubt about it: the psychic pain that some same-sex couples endure because they cannot marry is absolutely real.

      So how can I be so cruel as to be against same-sex marriage?

      I was born without a left hand. That is unfair. Even so, that is my reality, and that reality never changes. Pretending otherwise is pretending; it is not accepting reality. An adult must finally accept reality, because that is a measure of adulthood.

      We live in a Scientific Age, and we must accept scientific distinctions, especially plainly visible biological distinctions that are indisputable in their potentials. It is silly, juvenile, and wholly irresponsible to do otherwise: to trade fanciful imaginations for plain facts — to pretend. What is indisputable is this: in the possible pairings of two people alone together, only in the pairing of one man and one woman alone together is procreation possible without any outside interventions. That is remarkable — stunningly remarkable! And something that remarkable is certainly deserving of its own unique name, especially in our Scientific Age in which every little thing has its own unique name if it is in any way discernibly different than all other things, even including those things that are otherwise remarkably similar to that which is different.

      Science differentiates through observations, and then language differentiates by assigning a unique name to that which is observably different in a distinct way. There is nothing new about this process. In fact, The Holy Bible describes Adam doing scientific work before Eve was even created when in Genesis 2:19 it states:

      "And out of the ground the LORD God formed every beast of the field, and every fowl of the air; and brought them unto Adam to see what he would call them: and whatsoever Adam called every living creature, that was the name thereof."

      Just five verses later, God instituted marriage after creating Eve when in Genesis 2:24 it states:

      "Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh."

      The Code of Canon Law of the Roman Catholic Church defines the term "one flesh" this way:

      Can. 1061 §1. A valid marriage between the baptized is called ratum tantum if it has not been consummated; it is called ratum et consummatum if the spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh.

      In other words, "one flesh" is a child born to the woman spouse as the consequence of her and the man spouse having "performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring." Very certainly, "one flesh" does not refer to a sex act of any sort. Rather, the term refers to a child who is born to a married couple who has had sexual intercourse in a way that can cause conception.

      The Code of Canon Law of the Roman Catholic Church regarding Marriage can be read at: http://www.vatican.va/archive/ENG1104/__P3V.HTM It is worth reading.

      The beginning is especially important to understand:

      Can. 1055 §1. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.

      §2. For this reason, a valid matrimonial contract cannot exist between the baptized without it being by that fact a sacrament.

      The Roman Catholic Church recognize Marriage as a sacrament, which is a very sacred distinction. Furthermore, by Canon Law definition, a marriage has not truly happened until it has been consummated, and consummation happens when "the spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring." What that means is this: a same-sex couple cannot possibly consummate a marriage, because it is biologically impossible for them to do so.

      Consider the grounds for marriage annulment in the 50 states:
      One must ask: How do two women consummate a same-sex marriage? How do two men consummate a same-sex marriage? If "physical incapacity to consummate" is grounds for marriage annulment, then what it means to consummate must be defined, and those definitions must be codified into state law. Do we really want to go there regarding same-sex marriage?

      The point being this: "marriage" is not the only word at stake in the Defense of Marriage Act (DOMA) fight. Add in "consummate" and "consummation," then "impotent" and "sexual intercourse," and "copulate" and "coitus," … Why?

      Understand this: neither the anus nor the mouth is “a sex organ” by definition. Therefore, by definition, two males cannot engage in sexual intercourse with each other by any and all ordinary and scientifically correct definitions. Anal sex and oral sex are sexual encounters, but they are not truly sexual intercourse or copulation, and they are most certainly not coitus. Similarly, by definition, two women are unable to engage in sexual intercourse, copulation, or coitus with each other. Consequently, by definition, neither two gay men together nor two lesbian women together are physical couplings that can possibly consummate — it is physically impossible. These are factual truths according to our shared English language as defined by Webster’s Dictionary.

      One might argue that consummation is unnecessary for marriage, but a marriage is not a marriage until it is consummated — and this definition is by every historical precedent, longstanding practice, and common understanding. The Roman Catholic Church considers that “a marriage is invalid when one of the parties is impotent” — and that is AFTER the Sacrament of Holy Matrimony ceremony has been performed and the Legal Marriage documents have been signed! Similarly, the State of Illinois will invalidate a Legal Marriage “if one party is impotent,” which the dictionary defines as “unable to copulate — to engage in sexual intercourse.”

      The concept and the term "marriage" has had a common definition in human history since Adam and Eve in the Garden of Eden, which some calculate to be 6,000 years ago. "Marriage" has to do with Science and Literature and History and the Sacred Texts of every major Religion in human history.

      The question of plural marriages always comes up. The fact is this: a man with six wives has six separate and distinct marriages, and each marriage is between the man and one of his wives. A marriage has always been between just one man and just one woman, even in the case of polygamy.

      The question of a childless couple always comes up. The Holy Bible tells the story of Abraham and Sarah, and their son Isaac. If you are curious about it, read Genesis chapters 15 through 23. In brief, Abraham and Sarah were childless until Isaac was born when Abraham was 100 years old and Sarah was 90 years old. Many will scoff at the story, but every devout Jew, Christian, and Muslim in the world considers the story to be true, and that is billions of believers.

      In the final analysis, it gets down to the opening words of the First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …" Unfortunately, the Wisdom of King Solomon is necessary, and what we have instead is the Supreme Court of The United States of America.

      The ugly is this: atheists are on the loose in America today, and they have no sense of the sacred. Oddly, they are religious people in their own right, but they steadfastly refuse to admit it. Consequently, one can only conclude that they are weak-minded, perhaps even feeble-minded. I would rather that to not be the case, because the answer to the DOMA fight will be found in a philosophical understanding of things, an understanding that will find goodness in defending the English language against the threatened pillage and plunder of the philistines in our midst.

      Consider: http://steven-a-sylwester.blogspot.com/2011/01/re

      No fight is ever won if it is always fought on the defensive. An alternative that actually solves real problems needs to be presented to those who are battling for same-sex marriage rights. I have presented such an alternative, but it has gone nowhere yet.

      Steven A. Sylwester

    7. Michael, Los Angeles says:

      Baker v. Nelson was dismissed "for want of a substantial federal question." The question was whether there were federal constitutional protections to protect citizens from actions of the state regarding same-sex marriages (through the 14th amendment). The question in DOMA is a purely federal one. The question is about whether federal law violates the constitution, and since it is federal it does not need to find its roots in the 14th amendment. This is a very different question and therefore the decision in Baker v. Nelson is not in the least relevant.

    8. John, Los Angeles says:

      Actually, all research studies show that children raised by Gay parents, fare better in life (social, educational, professional) than children raised by straight parents. Also, one would tend to agree that children raised by two parents fare better than single parent households. So how do we deal with the fact that almost 50% of marriages end up in divorce, with millions upon millions of children living with only one parent? This has nothing to do with same-sex marriage rights, and everything to do with legal divorce. Does the author advocate making divorce illegal (when children are involved) – since he cares so much about children being raised with two parents?

    9. Jason, California says:

      The logical fallacies inherent in basing an argument off of the Bible are countless. Examples of obvious errors in the Bible include Jonah living under the sea in a fish for three days, rainbows not existing before the flood (Which, by the way, geologists have not been able to find a single shred of evidence to support), Samson losing his strength when he cut his hair etc.

    10. Justin, Los Angeles, says:


      Taking great pains to gloss over the numerous logical fallacies and confounding of religious dogma with "fact" and "historical truth," I offer you a mental exercise. Suppose those of us to whom you refer to as "atheists" (a straw-man, horribly oversimplified, false label) summarily reject the notion that your Bible should have any influence on legal decisions, summarily reject the notion that the concept of "marriage" is in any way owned by Judeo-Christian dogma, summarily reject the notion that marriage itself has its origins in your Adam and Eve fairy tale, and reject the "scientific" and sexual restrictions on the definitions of marriage that you and some legal systems of your choosing have placed upon this purely legal concept. What then?

      Several states already recognize same-sex marriage. It is certainly coming to your state, and when it does, you will find that your life is no worse for it.



    11. Bobbie says:

      Justin, of course no one should expect an atheist to respect where marriage came from but it is an institution in regard of one of each gender.

      Why are you intolerant of a simple word? Causing all kinds of trouble and attention to push you're way into a definition you don't fit? As mentioned often, homosexuality has been around since the beginning of time, but all of a sudden. How selfish. Restrictions in marriage was for health and civil reasons. It's the act of homosexuality that spreads aids.

      Hearts will be saddened by the witnessing of mankind's intolerance getting it's way.

    12. Phil, Pearland, Texa says:

      So the President of the United States has determined that a bill that was lawfully passed by both the House and Senate, and then signed into law by President Clinton is unconstitutional. What happened to the Supreme Court? Aren’t they the branch of government charged with that task? It’s not up to someone in the White House or the DOJ or the Congress, but the Supreme Court. How does this President get off with telling the DOJ that a law is unconstitutional. I wonder what law he will pick next as being unconstitutional. I am waiting for someone in the Republican or for that matter the Democratic Party to stand up and say this is not right, but unfortunately the silence is deafening. The law itself might be a minor (?) issue in the grand scheme of things, but does this concept of the President deciding which laws of this country to enforce based on his own whim or political leaning concern you? It certainly does me.

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