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  • Time for a Real Defense of DOMA

    Justice for John Yoo and Jay Bybee

    President Obama and his Justice Department have decided to leave the legal defense of the Defense of Marriage Act to others—and, as embarrassing as this decision in the midst of intense litigation may be to the Administration – it is probably a good thing for the institution. This is no time leave marriage to the mercy of the kind of half-hearted defense Eric Holder’s Justice Department was offering it.

    Marriage is the cornerstone in an archway of values that form the constitution of the family and the foundation of civil society. To its advocates as an institution with a pre-political meaning, it is not an entity created by the state but rather one recognized by the state. It is not about one family, but the coming together of two families, whose role in begetting and bearing children make them not merely part of a community but the creators of community. The community they create is not time-bound, but existing across generations. For the sake of its history and its future, authors write books about roots and Web sites offer tools to research genealogies.

    Of all the reasons why the Obama Administration’s haphazard approach to DOMA is bad, none is more distressing than the belief, asserted breezily in Attorney General Holder’s statement today, that the argument for marriage as a path to “procreational responsibility” can be “disavowed” and ignored by the courts. The implications of such a statement for public policy are staggering. More than a package of government benefits is at stake. More than a line item on passport applications is at issue. What is at stake is the whole task of society to ensure that as many children as possible are raised by their mothers and fathers.

    The consequences of failure are staggering, and the contemporary United States, like so many other Western nations, is seeing those consequences firsthand. The effects of broken families are statistically significant across category after category – youth crime, child poverty, educational attainment, and adult mental health in the next generation. For taxpayers, the costs of family dissolution and, increasingly, the failure of families to form are distressingly high and growing. It would be irrational not to privilege marriage for the sake of these concerns.

    The case for DOMA rests on multiple grounds, including legal precedent that the Obama Administration has studiously ignored in its run-up to today’s announcement. President Obama has indicated time and again that his Administration wants to repeal the Defense of Marriage Act. Fair enough. The 1996 congressional debate on the measure was thorough and decisive. The same should hold true for the cases and controversies now before the federal courts in New York and New England. Now that President Obama has shown his hand and bowed out of the fight, a real defense of DOMA can begin. The American people deserve no less.

    Posted in Culture [slideshow_deploy]

    28 Responses to Time for a Real Defense of DOMA

    1. West Texan says:


      As earlier stated in my comment to Hans von Spakovsky's blog, Obama and gang have demonstrated moral nihilism regarding marriage and fedral statute. Much like anarchy, national socialism far right and left elements. Guess where Obama's "change" comes in?

    2. Kate says:

      Unmarried childbearing, single parenthood, and broken families are all devastating problems in modern America. But what do any of them have to do with same-sex unions?

      If marriage is "in danger" today, it's because of all the OPPOSITE-SEX couples who decided to break their wedding vows and get divorced. Making whatever compromises and sacrifices are needed to make a marriage work, they thought, is just too hard. So they gave up, and left their children to reap the consequences.

      Baby boomers, if we, your children and grandchildren, aren't getting married – it's your fault. Many of us have no examples of healthy marriages in our lives. We tend to think that marriage is a prescription for either a bitter divorce or a lifetime of misery. And why shouldn't we? The baby boomer generation has given us every reason to. It takes a tremendous leap of faith to get married nowadays.

      If you've ever gotten divorced, you have no right to campaign for the "sanctity of marriage", because you obviously don't believe in it.

      Bottom line: don't blame the gays for what the heterosexuals have wrought.

    3. frank keen says:

      This president is a complete disgrace to this country, if DOMA falls, this will not be the end of itr, these vile pigs will push their sick vile agenda even further into our schools with making children learn gay sex classes, this president needs to be removed from power as soon as possible, we all cannot wait til the next election, he need to be removed by any means necessary, before he destroys this whole entire country,Repealing DOMA is completely wrong, since when does he get to over ride the courts and congress, this man has proven himself to a dictactor time and time again…….IMPEACH THIS MORON BEFORE ITS TOO LATE!!!!!!

    4. Phil says:

      OK. Now we need an argument on why gays should be excluded from marriage. They, too, raise children and families. They don't neccessarily 'beget' their children, unless you count artificial insimination, but then again, neither do adoptive or infertile parents. If adoption and artificial insimination is a good enough substitute for infertile heterosexuals, why is not for homosexual infertiles as well?

    5. Jonathan says:

      Im confused about the meaning of Art 4, Sec 1. It appears to say that ALL contracts made in any state has to be recognized in ANY state. How then can the govt pass a law exempting some contracts? The end part states that congress can make laws regarding proof and effect, but what does effect mean, that congress can make laws determining the effect of a contract?

      I think all govts need to stay out of how two free humans decide to socialize with each other, and the bonds they form.

    6. David D. McKee says:

      Only one thing to say. Marriage is between one man and one woman, and is ordained by God. Anything else in an abomination in His eyes, and will be judged accordingly. What is happening today reminds me what was happening in Israel during the times of the Judges. The peoples knew not their God, who loves them and cares for them. And because of that, they all did what was right in "their own eyes" and God brought judgment upon them. Look around readers, can you not see God's righteous hand of judgment coming to this country. It is time for us to stop saying "God bless America". We need to be saying "America, Bless God". If we as a nation humble ourselves and repent of our sins against God, maybe He will once again, Bless Us!

      Maranatha, Lord Jesus Christ!

    7. West Texan says:

      In all the fray … I lost my way. Social matters are the sovereign domain of states, not the federal government. The national charter is for defense, foreign affairs and interstate mediation, to include upholding basic individual and states rights. If a state passed similar DOMA legislation, so be it. Such law upholds the majority residents moral and civil traditions. It does not discriminate against a person's natural being. Don't like it? Move to a state that recognizes same sex unions.

    8. Mike, Wichita Falls says:

      I believe Article 4, Section 1 of the Constitution essentially states that Congress can prescribe the effect of those state acts which should or could be interpreted to mean that they can enact laws granting exceptions to them such as DOMA.

      DOMA only says that each state's marriage law or act, or in the case of MA, marriage court ruling or judicial proceeding, cannot trump that of another state's marriage act or judicial proceeding. If two gays are married in MA, their marriage will not be recognized in TX, so don't move there.

      What would be the use of the other 49 states if they had to abide by Texas laws? What works in TX will not necessarily work in CA. Should CA abide by TX right-to-work laws? Should TX abide by CA emission standards? No & no.

    9. Kevin H, college par says:

      The religious zealots need to get out of politics – it's disgusting so many dim-minded people believe these silly stories and then try and throw their beliefs on others. Keep your stupdi religious laws out of our country's politics.

      I'm so tired of these religious hypocrits – divorce rates are higher then ever – particularly in red states – and they have the nerve to talk about the sanctity of marriage. Guys like Ruch and Beck and Vitter and Newt talk abotu family values while they are cheating left and right.

      I'm just happy more americans have become openminded and actually think on their own and not get suckered into these silly religions that do nothing but take money from and control the dimminded.

    10. Leon Lundquist, Dura says:

      Eric Holder is running an Unconstitutional Form of Government in the Justice Department. We saw that when they let the New Black Panthers get away with Intimidation. Refraining Prosecution is a big feature of the RICO Statutes! That is a High Crime! Same with their revolving door for Illegal Aliens who commit crimes! They are Refraining! So, here it is, the cleanest example so far! DOJ is not going to enforce the Defense Of Marriage Act! I know this is Refraining is some class, but the Constitution says Holder has to uphold the Laws! He won't do it! That is a High Crime!

      The House of Representatives should deny the whole Department of Justice funding, based on these High Crimes! Isn't it clear, when Obama never calls his Cabinet Officers but is every day on the phone with the Union Leaders! No! Obama doesn't even pretend to Represent the American People! What? Does he have to be caught red handed in murder before the House Impeaches him? What is wrong with you people? You can't see High Crimes perped in plain sight?

      Kiss America goodbye! George Soros said it, "That ship has sailed!"

    11. Corie, Las Vegas says:

      I read somewhere that it is easier to get out of a marriage contract than it is to get out of a mortgage contract or credit card contract. I agree with @Kate that the problem with marriage is caused by straight people and not gay people…because marriage is for one man and one woman, and they have screwed it up. As a child of divorce, I have noted for a while how the baby boomer generation (and their parents who got divorced after WW2) have screwed us all up. They failed to pass their values on to their children. However, the ease of No Fault divorce laws, absence or lack of enforcement of adultery laws, etc., combined with the lack of religious instruction at the individual family level has contributed to the situation. In other words, bad government policy. However, the solution to society's ills will not be found by legalizing gay unions nationwide and promoting adoptions and surrogacy/artificial insemination for gays to form families. Or promoting homosexuality as a completely normal, healthy, alternative for adolescents. Homosexuality does not form the basis for a healthy society. You don't have to be religious to recognize that.

    12. Bobbie says:

      The bible isn't a religion. Religious zealots? Why is politics in marriage when marriage was substantiated from the bible, Kevin H.?

    13. Anthony, Las Vegas, says:

      DOMA is a complete waste of time. There are way more important issues at hand than gay marriage. So what if gay people get married? What would actually happen? Things would pretty much stay the same, except that more gay people would be wearing rings. That's about it.

      I see some people writing about gay marriage being taught in schools. I need to remind you that marriage, period, is not taught in schools. I have never taken a "marriage course" in school, ever.

      I see a lot of "God" here too. You need to remember that we have Separation of Church and State. If you want to be married under the Grace of God, good for you. Go find an ordained minister to marry you under God. When you do this, you actually are married twice. How? Because when you're married under God, you are also married under the Federal Government (which is not God). If a gay couple gets married by a judge, that judge does not represent God, they represent the gov. Therefore, if gay marriage was legal, but ordained ministers refuse to marry gay couples, then gays Would Not actually be married under God.

      You need to understand that marriage by the government is not sacred. Only marriage under God is. Please stop wasting time and tax dollars on this. Let the gays get married (under not-God), and simply tell your ministers not to marry them under God.

    14. David, Washington St says:

      West Texan is absolutely correct, as is Mike. The federal gov't has no business legislating social issues for states, or in this case dictating them. It is, as the author of the article points out, fortunate, that the Obama "Outlaws" are not to be responsible for the defense of marriage, they never supported it anyway. The courts, not the President decide constitutionality. So Obama's statement carries no more weight, in deciding this issue than my own, or yours. As to Kevin H.'s comment, I can only say that this is typical liberal attitude. You cannot argue the legality or the issue, so like a child you attack the source. The fact is that Christians have sucessfuly argued this & the Gay marriage issue from a legal & logical standpoint for years, because they are educated, not politically vacant. I think this was obvious in the outcome of the last election.

    15. tp, co says:

      "Marriage" is a religious institution, predating U.S. Constitutional rights by thousands of years.

      Governments, around the world, have only borrowed the traditional name to validate contractual rights and obligations. Those rights and obligations should just as easily be defined within civil unions for any committed secular couple – heterosexual or homosexual – but not described as marriage.

      "Marriage" should only be entered into by couples for which it has deep spiritual and historic significance.

    16. West Texan says:

      Those who claim traditional marriage has failed, I say your logic lacks merit. First off your message is generalized and unsubstantiated. It's supported only by personal ideology and preference. Based on your argument, we should tolerate and accept rapist and murderers who had dysfunctional upbringings. Bad comparison you say? Just following your lead.

    17. Mike Missouri says:

      Every where that one turns today, in the USA, you can make direct comparisons to the Fall of the Roman Empire. When your moral compass is broken and your god is money, your time horizon for existence is short. I hope for brighter days but we may be too far gone to recover from our illness.

      Thank you for the wonderful work you do and for the opportunity to share my thoughts.

    18. Domingo Garcia says:

      Great, now when a Republican conservative President decides not to enforce Roe v Wade then what happens. The President has purposely done this to create hate and chaos around the country. You can't blame a radical for being true to his heart.

    19. Wildcat from Dallast says:

      Since when does a President get to decide which laws he will defend or enforce and those which he will order his Attorney General to ignore?

      How about if we the people ignore him and his entire administration and simply refuse to follow everything he has enacted by executive order or signed into law as apparently the rule of law does not pertain to him so why should we be concerned with it as well?

      Can’t we send this jack-wagon to rule and ruin some banana republic rather than creating one here?

    20. Spiritof76, NH says:

      Isn't marriage a religious event, the world over? One of the reasons it is religious (or has been) is because you can consummate the marriage to start a family. In every culture, raising a family and perpetuation of the particular cultural group started with a marriage between a man and a woman. Man and man or a woman and woman "marriages" can not fulfill the reproduction needs of people. Therefore, it can not be termed a marriage. That does not mean that gay people should be discriminated in the legal terms of the marriage contract. You just can not define that relationship as marriage. Does biology discriminate?

    21. Kate says:

      @ West Texan:

      I never said that marriage, as a general institution, has failed. I said that many INDIVIDUAL marriages have failed because the parties involved weren't willing to do what was necessary to make them succeed.

      Getting married, or staying single, are both acceptable choices. There's nothing immoral, sinful, or criminal about never marrying. Rape and murder are grave sins and felonies.

      Of course, whether or not a person gets married is their choice, not their parents'. But parents have a enormous influence on the attitudes, values, and subsequent lifestyles of their children. They know this. And yet many of them still made decisions that irreparably damaged those children – my generation.

      If a couple wants to get divorced, fine. It's legal, no one's going to stop them. But they need to understand that actions have consequences. Their divorce will, very likely, cause their children to see marriage in a negative light. Children of divorce are less likely to marry, and if they do, they are more likely to get divorced themselves.

      Ultimately, people make their own choices. But parents always bear at least some of the responsibility for the way their kids turn out. People don't exist in a vacuum, and young people don't pull their attitudes out of nowhere.

    22. Greg Naylor, Baltimo says:

      I fully agree. Marriage is not about state given benefits and was in place as an institiution before the federal or state government existed. It's purpose is to create a committement by a Man and Woman to create a nuturing and supportive environment for themselves and more importantly for Children should they result from that union. Children may or may not result from the union only God or a higher being decides that as some couples many decide not to have children or may not be able to have children but they can result from the union. From the childs perspective they have a natural (God given) right to a mother and father and no one can replace that, no two daddy's or two mommys and as far as I know only can be concieved by a Man and Woman.

    23. Helen J. Boyer, Hanf says:

      Thank you for this post about the vital necessity of tradtional marriage. I heartily agree with the author's straightforward and understandable explanation of the need for the solid social foundation that marriage provides to society. Those who want to denigrate and reinvent this venerable institution, have no regard for the welfare of children and the great benefits to the adults who thrive due to the unity and partnership they share as they raise the next generation.

      I would hope that this article could be widely distributed to remind the country and its president of the most vital social institution for the flurishing of humankind.

    24. Bobbie says:

      Kate, You imply it through your words. Nobody said marriage was a union between two perfect people. How is adding gay people to the definition of marriage going to fix things? Instead of attacking it's establishment, why won't you accept the definition as it is? What is so attractive to you about the word marriage, that you think homosexuals fit in? No offense really. Just curios. All of a sudden homosexuals want to fit into a definition they don't and think others that live wthin the definition should just accept the intrusion without defending it's meaning? All the while you insult and demean with attacks, the definition and those that follow? How intolerant.

      Homosexuals can't be that happy using their time and energy to go out of their way to fight desperately, to be a part of a definition they're not. Disappointing.

    25. Karl, Phoenix says:

      Mr. Donovan,

      Thank you for your article. I read through the references regarding increased likelihood of delinquency and crime in children from broken families. For the purposes of discussing the DOMA, are there studies that directly compare children raised by mother-mother or father-father combinations to those raised by biological parents?

    26. DAC, Georgia says:

      Two points–First, as the head of the executive branch, whose duty it is to enforce the law, what right does the POTUS have to pick and choose what laws his administration enforces? Can you imagine the outcry if a conservative administration announced that it would not enforce civil rights laws or laws protecting women's abortion rights?

      Second, for all those who believe that the Constitution prohibits the state from dictating that marriage is restricted to one man and one woman, then it must also prohibit the state from mandating that marriage is for only two people, or for persons unrelated by blood, or persons of a certain age, etc. If this is true, then society is in for an endless spiral of decay. Rather than saying that the institution of marriage is in trouble and no longer worthy of defense, we should be working to uphold it, protect it, and rehabilitate it, as stable marriages stabilize our society and give children the best chance for a secure and successful future.

    27. Chris from Texas says:

      Five points and five questions to consider:

      1. Gay people have no greater right to have a government-recognized marriage than polygamists, polyamorists (polyamory is group marriage), or those who practice consensual incest. Members of all those groups could, and in fact do, argue for marriage "rights" using the exact same logic as gay marriage proponents. If gay marriage is legalized, by what standard do you deny people in these other relationships the same treatment?

      2. Unless you are willing to say that government must recognize anyone's definition of marriage, you have to draw the line somewhere, and the line that has best maintained the family as the principle institution of social and moral order for thousands of years has been one man and one woman, a reality uniquely rooted in psychology, physiology, emotion, and religion. How will expanding the definition of marriage beyond this successful, reality-rooted definition, do anything but dilute the concept of marriage and undermine its role as a social foundation?

      3. For the government to broaden the definition of marriage beyond heterosexual couples will send the signal to society that marriage in particular and morality in general are fluid and relativistic. If moral relativism has already hurt heterosexual marriage, why would we want to introduce even more relativism by saying that marriage is whatever anyone says it is?

      4. Mountains of social research have shown that gay relationships, even "committed" ones, even (and, in truth, especially) in locations where being gay is affirmed, are inherently less monogamous, less stable, more prone to break-up even than polygamous ones. Why, then, would we want to elevate gay relationships to the status of government-recognized marriage?

      5. Most current law mandates that sex education in K-12 schools include teaching on marriage. If gay marriage is imposed on the country, how will we avoid the fact that schools will be forced to teach children that homosexual relationships are moral and good, and that anyone who believes differently (including parents or pastors) is a bigot?

      If gay marriage is legalized, much more will change than "more people wearing wedding rings."

    28. Pingback: Protecting Marriage and the Rule of Law | The Foundry

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