The Spectacle Blog

How Can Goldstein Be So Obtuse on DOMA?

By on 2.25.11 | 9:42AM

Aaron's poor attempt to justify himself is a prime example of changing the subject to avoid admitting that one is factually wrong. Again, I do not fault his opinion (although I disagree with it); I fault his deeply dishonest description of what the Defense of Marriage Act does. Here is the utterly bizarre thing that he wrote in his most recent blog post:

I simply asked why the federal government is in the business of defending marriage when it is a matter best settled at the state level whether through the legislative process (as is currently happening in Maryland) or through referenda (as was the case in Maine in November 2009).

The entire point of DOMA (as pertains to the federalism question) is to make sure that state referenda (as in Maine) or statutes cannot be overriden by the actions of another state. It is specifically to protect state action that DOMA was passed. Without DOMA, Maine's referendum could effectively be overriden by the Supreme Court of Vermont. DOMA says that for purposes of Maine law, or Louisiana law, or whatever, the definition of marriage of Maine or Louisiana cannot be superseded by the definition of marriage in another state. If Vermont wants to "marry" a homosexual couple, Maine would therefore not be forced to provide spousal benefits to that couple if the couple moved to Maine -- specifically because Maine law requires otherwise.

So what if Bob Barr called DOMA "one-way federalism." One-way federalism is better than no federalism. Without DOMA, state and local decision-making would be nil. In fact, the decisions of 49 states could be superseded by the decision of one state to allow such "marriages." Yes, Barr made the assertion that the federal definition of marriage, for federal law, somehow is used as s cudgel against state recognition of homosexual "marriages." It is a strange and baseless assertion. How, pray tell, could it do so? Has any court in the land gone so far as to negate a state's attempt to recognize such unions because state recognition would somehow affect federal Social Security rights? Of course not. It's ludicrous. Barr gives no examples. Earlier in his essay, though, he wrote this:

Contrary to the wishes of a number of my Republican colleagues, I crafted the legislation so it wasn't a hammer the federal government could use to force states to recognize only unions between a man and a woman. Congress deliberately chose not to establish a single, nationwide definition of marriage. [My Italics added.]

By the plain legislative language of DOMA, the federal government is not interfering with the right of states to define marriage however they want to. It is for precisely that reason, in fact, that some social conservatives believe DOMA is too weak: They want a constitutional amendment, not just a statute, that does define marriage nationwide, for all purposes, as being an arrangement only between a man and a woman. If DOMA had attempted such a thing, Goldstein would have a valid argument against it on federalism grounds. But it doesn't, and he doesn't. His argument is intellectually dishonest, or at least awfully close to being so.

.....

Finally, as a side note, Goldstein is stretching a point to say that Obama has "precedent on his side" in choosing not to defend a duly passed law. If his point is that a president is not legally obligated to defend every law, he is technically right. Most conservatives angry with his DOMA decision have acknowledged as much. In unusual circumstances -- especially when a law intereferes with a president's Article 2 powers, especially pertaining to foreign affairs -- a president is not bound to defend a law IN COURT that he finds obviously unconstitutional. But the usual presumption is in favor, strongly in favor, of defending duly passed laws. The exceptions prove the rule. One exception is if the courts themselves already have ruled in the same way that the president sees it. In the example Goldstein cited, the first Bush administration noted that almost identical laws already had been struck down twice by the courts. The courts, in sum, were on Bush's side. Compare that to Obama's DOMA decision, in which his own main constitutional argument has been struck down by 11 separate circuit courts of appeal, while DOMA's underlying constitutional standard of review has been upheld. In other words, Bush had both his own judgment and legal precedent on his side, on a bill never actually signed into law by any president. So it was two branches of government against Congress. Obama, on the other hand, is a sole actor against the courts and against a law not only passed by Congress but signed into law by a president -- and a president of his own party at that. There is no "obvious" example here of a bill's provisions being unconstitutional -- which is what is usually required for a president to abandon its defense. Instead, there is a president asserting a legal position never upheld, as far as I know, by any appellate court in the land, namely that sexual orientation is to be protected under a legal standard of "strict scrutiny."

In short, the Bush example is in no way representative of the situation with Obama and DOMA. As former DoJ Civil Division official, former Cheney counsel Shannen Coffin told The Washington Times the other day, Obama's new position is nothing more than "politics dressed up as constitutional law." (It is an unfortunate state of affairs in this age of political correctness that to say "cross-dressed," which would be more accurate an analogy completely apart from any suggestions of sexual orientation, would be unacceptable among the liberal intelligentsia because they would say it is a slur. Bosh.)

Obama's decision is not just that it puts him on the wrong side of the public, the courts, and millennia of human history. It also puts forth a constitutional argument that would be highly dangerous to textualist/originalist jurisprudence if the Supreme Court actually adopted it. Its ramification could spread well beyond the "marriage" context and be used as, yes, a cudgel not just against any state, such as Maine, that would choose not to recognize same-sex marriages (talk about harming federalism!), but it also could be used as a precedent for courts to further insert themselves into state affairs on any number of other fronts.

I'm not just worried about traditional marriage; I'm worried about our constitutional order. So should every conservative, including homosexual ones.

[Title edited.]

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