Wednesday, February 23, 2011

Obama Admin. will no longer defend Defense of Marriage Act.

I predicted months ago that states will be forced to accept gay marriage under an equal protection and privacy rationale as a matter of constitutional law. Another step in that direction occurred recently when the Obama administration announced it would no longer defend the federal Defense of Marriage Act--which defines marriage as a heterosexual union only.


  1. My post to HF's Morning Bell blog

    "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."

  2. Clarification. "Social matters ..." meaning domestic policy.

  3. My later comment to HF's blog.

    "As far as marriage, I agree with your statement that DOMA protects ' … the right of each state not to be forced to accept the redefinition of marriage … as a result of state court decisions or laws.' [Conn Carroll] Any law that limits social progressives at the national level excels a constitutional test."

    Conn also wrote that Obama cited the 5th amendment to support his decision. What's your take?

  4. Thanks 44: The right to "privacy," from which constitutional (as opposed to natural law rights) marriage and sexual rights flow (e.g. Lawrence v. Texas) is covered by the word "liberty" in the 5th (applies to federal government) and 14th (applies to states)Amends. This use of the word "liberty" to create substantive rights out of the due process clauses is referred to as "substantive due process."
    There are two quite distinct versions of SDP. One is incorporation, specific substantive provisions of the Bill or Rights against the states. This is how the Supreme Court made the Second Amendment applicable against the states in McD v. Chicago. In the more controversial branch, the Court finds substantive rights that are not specifically mentioned (non-textual)in the Constitution (e.g. "privacy") and makes them enforceable constitutional rights via the word "liberty". Under this second branch, Since DOMA is federal legislation, the 5th Amend. would apply. ASSUMING this branch of substantive due process and this particular application are valid constitutional doctrines, Obama and Holder may be correct--DOMA COULD be a violation of the 5th Amendment. As usual, we will have to wait until the courts sort it out. At this point, since only federal legislation is involved, this case does not directly involve the states. However, if DOMA is unconstitutional for the feds, it is also highly likely to be unconstitutional for the states. If the Supreme Court strikes down the federal DOMA, striking down similar state legislation will probably not be far behind. Stay tuned.

  5. Scary. Thanks for your very informative reply.