After spending its first two years (and change) in office arguing in federal court in favor of the Defense of Marriage Act (DOMA), the Obama Administration abruptly did an about face and announced it will no longer do so. To be precise, Attorney General Eric Holder advised Congress that the Department of Justice will not defend Section 3 of DOMA, which defines marriage as “a legal union between one man and one woman as husband and wife.”
Although the federal government will no longer defend DOMA in court, Holder noted the law will continue to be enforced until either a higher court strikes it down or it is repealed by Congress. California Democratic Senator Dianne Feinstein is planning to introduce legislation to do just that. If Feinstein is successful in getting repeal legislation passed through Congress, it could prompt House Republicans to introduce either a new version of DOMA or it could also re-ignite efforts to amend the Constitution with a Federal Marriage Amendment. Either way the culture war is far from ending in a truce, especially now that President Obama has placed himself at the center of it. Some might say he has placed himself well to its left.
I agree with Ed Morrissey when he states that President Obama “has finally realized that his allies are thinning, and he figures that he needs to start pandering to those still on his side. It could certainly help distract from the budget fight, if Republicans take the bait.” And no doubt there are some Republicans who will bite. Now one can take the Obama Administration to task for both a lack of consistency in this matter and for its political motivations. Nevertheless I think it has made the right decision even if it was made for all the wrong reasons. My argument is twofold.
First of all, why is the federal government in the business of defending marriage? Bob Barr, the former Georgia Republican Congressman who ran for President in 2008 on the Libertarian Party ticket and the man who introduced DOMA in 1996, would eventually publicly come out against his own legislative creation. In an op-ed published in the Los Angeles Times in January 2009, Barr wrote:
Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.
Whether you believe in the traditional definition of marriage or whether you believe that marriage should be broadened to include same-sex couples, it is a question that ought to be settled at a local, county, and state level. If Maryland’s legislature decides to recognize same-sex marriage then fine. If voters in Maine decide in favor of traditional marriage then also fine.
Secondly, I am not making the argument that marriage isn’t worthy of defense. What I am arguing though is that if one does defend the institution of marriage, then one must bear in mind that matrimony is only as good as the two people who enter into it. As with any contract (and that’s what marriage is), there is no guarantee the two parties will be the better for it and in this day and age it is far less difficult for one or both parties to extricate themselves from such an agreement if there is no agreement to be had.
It is thus entirely possible that a couple of the same sex might very well be better suited to marriage than a couple of the opposite sex. Undoubtedly, there are many who would consider such a notion abhorrent and blasphemous. But Congress cannot legislate morality. Government cannot make you a good person. Marriage and family are important parts of our lives. Perhaps even the most important part of our lives. As such it is a part of our lives far too important to be left to the whims of Washington.