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  • 15 States File Brief in Support of DOMA

    Fifteen states have filed an amicus brief in support of the federal Defense of Marriage Act (DOMA), urging the Supreme Court to review an appellate court panel’s decision striking down the law.

    Passed by broad bipartisan majorities and signed by President Clinton in 1996, DOMA defines marriage as between one man and one woman for the purposes of federal law and ensures that states do not have to recognize same-sex marriages entered into in states that have redefined the institution.

    Like all congressionally passed laws, DOMA should be vigorously defended in court by the U.S. Department of Justice. That’s not the case here. Instead, in an extraordinary move, the Obama Administration first undermined, and then abandoned completely, its defense of DOMA. The House of Representatives was forced to step in and provide a defense of DOMA in this and numerous other cases challenging the statute.

    The states’ brief in Bipartisan Legal Advisory Group v. Gill is highly critical of a First Circuit Court of Appeals panel’s decision to invalidate the section of DOMA dealing with the federal marriage definition. That decision disregards binding Supreme Court precedent that would have foreclosed the challenge. It also invents a novel standard of judicial review to justify striking down an act of Congress in favor of the court’s own policy preferences.

    The implications of the panel’s decision are troubling. The federal government differentiates between marriage and other relationships on the basis of their capacity for procreation. This differentiation is, according to the First Circuit panel’s reasoning, constitutionally illegitimate.

    As the 15-state brief argues, this procreative rationale is a critical factor in the marriage laws in some 42 states. If the First Circuit’s rationale striking DOMA on federal constitutional grounds is allowed to stand, the brief argues, it could threaten other marriage laws: “It requires no great leap of logic to conclude that a judicial declaration that DOMA serves no legitimate government purpose erodes the constitutional support for similar state laws.”

    As the building block for the rest of society, marriage’s central civic purpose has always been to connect biological parents—especially fathers—to their children. As the states’ brief argues, civil recognition of marriage “historically has not been based on a state interest in adult relationships in the abstract.” Rather, “traditional marriage and benefit policies further state interests in responsible procreation by encouraging biological parents to remain together, a rationale that cannot extend to same-sex couples.”

    The institution’s meaning is thus integrally linked to the social needs it is designed to address. “A constitutional doctrine that requires the same benefits for same-sex and opposite-sex couples must supply a coherent rationale for government recognition of both, not simply attack traditional marriage as antiquated or somehow ill-considered,” the brief concludes.

    A federal district court in Hawaii has declined to adopt the First Circuit panel’s reasoning and upheld that state’s definition of marriage as one man and one woman. In so doing, it bucked the all-too-common trend of courts short-circuiting democratic processes by judicial decree.

    Posted in Culture [slideshow_deploy]

    25 Responses to 15 States File Brief in Support of DOMA

    1. Ohio Joe says:

      While the fact that fifteen states are fighting back is certainly encouraging, I have to wonder… why only 15?

      I feel certain that the majority of all people in all 50 states would like to see the traditional definition of marriage upheld.

      • Michael says:

        Only 15 states oppose DOMA because DOMA is unconstitutional. DOMA ignores the rights of states to decide laws related to marriage. DOMA has been found unconstitutional by 7 federal courts. This isn't about marriage equality as it is about federalism.

        Regarding your certainty about the majority of people in all 50 states supporting traditional marriage, I'm afraid your wrong. Most polls show the US turning toward support of equality. There have been 14 major surveys that now show the majority of the american population is in support of marriage equality.

    2. John G says:

      I'm surprised — from a group that claims to support Constitutionally-limited gov't — that the Heritage Foundation would support DOMA. After all, I don't see anything in Article 1 Section 8 authorizing such intervention. At best such regulations should be left to the states. You know, 10th Amendment and all.

      • Ohio Joe says:

        John, you're right!

        But the federal government has already overstepped the constitutional boundary so many countless times, are we supposed to do nothing to show our disapproval?

        • John G says:

          "But the federal government has already overstepped the constitutional boundary so many countless times"

          So? Do all those other wrongs somehow make this right? C'mon now. Either you support a constitutionally-limiting government, like the one our founders set up, or you don't.

          A Republican/conservative supporting federal gov't intrusion because it's something he likes is no different than a Democrat/liberal supporting gov't intrusion he likes. Actually, you know what, it's worse — the Democrat doesn't campaign and preach about the fundamentals of freedom and liberty and keeping the federal gov't where it belongs before he sticks the knife in your back.

          Sadly enough, I have marginally more respect for Democrats than Republicans because at least Democrats are honest about their desires to grow government.

    3. John19mo says:

      If the foundation for Marriage is procreation as stated in the article – Why are we allowing sterile heterosexual couples to get married?

      • Bobbie says:

        Because they can adopt and sustain the balance of 1 male father and 1 female mother. And who are "we" that's "allowing" is where the problem is!

        Marriage doesn't hold reason for recognition by governance that isn't one's own. It was government officials that brought themselves in marriage under the proper definition commonly understood since the beginning of time, that intolerant people today who've always been contrast to the meaning also since the beginning, want attention to be included where they just refuse to accept, they don't fit in.

        • Alan E. says:

          Bobbie, now you are making the claim that marriage is not about procreation, but rather child rearing. With the exception of the highly controversial Regnerus study, all the evidence is pointing towards gay couples making fit parents, thus satisfying the rearing claim you are now making.

          • Bobbie says:

            Allen, I'm responding to the previous comment. Whoever is sterile is nobody's business and irrelevant to marriage to a point. The bible doesn't call upon testing for sterilization and virgins marry before the act and find out their sterile when they find out thus directing them to adopt a child to rear in a balanced home of 1 of each opposite gender. Procreation and childrearing go hand in hand so I'm confused about what you're implying? Gay couples aren't a balance of one man and one woman, opposite gender, so no they're not fit parents thus unsatisfying the rearing claim I am now making.

      • mominvermont says:

        How do we know the man and woman are sterile? Do you propose a test? And, even if they are, at least they provide a gender-integrated home for a child to grow up in. Gender segregation is for public bathrooms, not marriage.

        Defend pro-gender marriage.

      • Durk says:

        THANK YOU. I was just thinking the same thing.

        We don't stop two 80 year-old heterosexuals from marrying one another, but we MUST stop 80 year-old homosexuals from marrying one another?

        States have NEVER based their laws on marriage around actual procreative ability, as far as I know.

        • Bobbie says:

          heterosexuals marry for love, homosexuals marry for benefits and forced acceptance. The only gripe of their homo base.

        • Bobbie says:

          let me specify "government benefits." Something no one should be proud of.

    4. Hugo says:

      How about old people? We have to ban them to get married also. And why only 15 states are asking for that? Because only those are crazy enough to ask for.

    5. KNN says:

      You'd think it would be more. Same sex marriage, when placed on the ballot and public allowed to vote, has been voted down every time (0 for 32). The latest being North Carolina, site of the DNC, where earlier this year voted down same sex marriage 61%-39%.

    6. theundittohead says:

      I'm baffled by the phrase "traditional marriage." One man/one woman is a thought only a few hundred years old. Biblically, it's been many, many men, and one woman. Solomon had how many wives and how many concubines?

    7. James Wames says:

      A lot of people seem to have not gotten the memo that says "Its 2012 people, time to start moving on from the gay issue!"

    8. Do you think you are a good person trying to destroy families already formed by gay couples and their children? Those families don't have any federal protection like heterosexual families do. Same-sex marriage is already happening, it's about time for all marriages be recognized in a federal level with full rights such as immigration, tax return, health insurance, etc. If the states want to decide whether to perform same-sex marriages or not, let them decide it. The big point is all the same-sex marriages being performed in certain states that do so HAVE to be federally valid with full marital benefits. That's what you close-minded people have to understand. And for this to happen DOMA has to end. It's absolutely not asking too much. For crying out loud!

      • Bobbie says:

        full marital benefits? what are they specifically? I'm a woman married to a man with children. We're not rich or business owners and we get penalized. So please be specific in regard to "full marital benefits." You may be biting off more than you can chew…

    9. Katherine Brennan says:

      If you people only knew the devastating effects that DOMA has caused, I doubt very much you would even dare to support it, conservative or not, religious or not. I suggest you carefully study the 1200 rights it strips from couples legally and ask yourself of you would treat your own family and friends that way. This has bugerall to do with "marriage" as defined by religion it has everything to do with people being treated LEGALLY the same as everyone else. Edith Windsor is a classic example of the negative effects of DOMA which almost killed her, and if you think her story is bad, imagine it a thousand times worse. This is about the legal definition of marriage, the legal rights that come with it, like tax, hospital visitation rights, immigration rights, and another 1200 other rights. Nobody is asking a church to marry same sex couples. Before you "assume" do your self a favor and actually study the 1200 rights and then ask yourself if that is "Christian like" to deny legally married couples this??? DOMA will be dead next year, that I promise. There are much more pressing issues than spending millions of tax payer dollars trying to defend a law that has caused such cruelty. It's about closing the gap between the inconceivable and the inevitable. Get used it and move on.

    10. Keith says:

      Such rationale, that same sex couples are in some way going to erode the fiber of society is ridiculous. It is a fact though, that DOMA discriminates against citizens of the United States of America. This law was instituted with the sole purpose of discriminating against same sex couples. Heterosexual couples that have no offspring enjoy the same protections as hererosexual couples with Offspring. This law is a fallacy and should not be defended. To take away rights from a certain segment of society because they offend your personal or religious beliefs is unconstitutional.

    11. Keith says:

      DOMA is on the way out. It will Fall. Some would have people believe that it will damage our constitution. DOMA is not part of our Constitution, but a Bigoted Discriminatory LAW.

    12. macinmo says:

      John19mo – Who "allows" sterile heterosexual couples to get married? Does your question suggest that
      someoe should NOT allow other actions? Who woud that be – YOU ??????

    13. macubni says:

      I would like to see a law that defines what love means. Then, the government can "allow" any number of
      things. If you LOVE someone or something – you can do anything you want – I guess. Makes sense to me.
      After all, human experience goes back a few years – we have a long history of "allowing" to sustain us.
      Can't wait to see what else is "allowed." Maybe everything can be codefied into "law."

    14. Gerry says:

      DOMA has to go! If any so-called Christians actually knew what this law does to gay people, they should be ashamed for supporting it. I'm now back in the Scotland after spending several years in the United States on temporary visas. I met my older American same-sex partner there, and we fell in love. But, I had to leave almost a year ago because my visa was due to expire, and he was unable to sponsor me for a green card. There is no point in us getting married at the moment as it's not even recognized in the USA. We will get married, or have a civil union in Scotland. Straight couples are able to sponsor their foreign partners without too much difficulty if the relationship is genuine. Fortunately, I am from Scotland, and I am able to sponsor my American partner to come here and live with me. However, that should not be the case. My partner is a law abiding citizen, has brought up a family in America, has been a great teacher, and has paid a lot in tax for the American government. He should not be forced to leave the USA. I hope DOMA does get repealed this time next year so gay people don't have to worry so much about being forced to live apart again.

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