Setting aside the high-school-sophomore level reasoning of Aaron Goldstein’s last two paragraphs this morning on the DOMA decision (“You cannot legislate morality” is right up there in inanity with “well, he started it!!”), the problem I have with the entire column is that Goldstein clearly doesn’t even understand what is at issue. I wrote him a note before posting this, explaining his factual errors, but he declined to amend a single word. So, despite what is usually my high regard for Goldstein’s work, here’s what I wrote him:
The Obama decision has NOTHING to do with “the government defending marriage,” in the sense you describe it. At issue is Section 3 of DOMA, which for purposes of federal law says that any mention of “marriage” (or its derivative words) IN FEDERAL STATUTES is to be defined as being between a man and a woman, and that any mention of “spouse” is to be defined as pertaining to the opposite sex. ALL this means is that in the hundreds and hundreds of federal statues that mention such words, the standard, traditional definition applies. It clarifies existing congressional intent. Because so much law is written with reference to this millennia-old, basic unit of family organization, and because all sorts of complicated questions would arise if, statute by statute by statute, each law had to be re-written to specify this basic intent (or not to do so), Congress decided to clarify that all existing law should be taken at what until about four years ago was considered to be obvious face value. Obama’s decision ONLY affects Section 3 of DOMA. That’s it. Period. https://www.talkingpointsmemo.com/documents/2011/02/letter-from-the-attorney-general-to-congress-on-litigation-involving-the-defense-of-marriage-act.php?page=1. That has nothing to do with getting the federal government “out of the marriage business.” It merely sets a definition and thus precludes lawsuits based on an alternative definition, aimed at any of the hundreds of statutes involved. (It also does NOT preclude any subsequent statute from saying something like “notwithstanding any prior statute to the contrary, for purposes of this statute a ‘marriage’ shall be understood in whatever way the term is defined in the state wherein the affected parties reside.” ANY subsequent statute trumps a prior statute.)
Secondly, as for the rest of DOMA, which is NOT at issue in the president’s decision yesterday, it absolutely does leave the definition of marriage to the state and local level for purposes of state and local law, despite your ignorant claims to the contrary. What DOMA does is say that a state that does NOT wish to recognize a homosexual marriage of ANOTHER state, for purposes of its own state laws, is free not to do so. DOMA therefore PROTECTS state and local decision-making, rather than abuses it. This isn’t a matter of opinion; it’s fact. That’s what the law does. You have utterly mis-described it. Your argument on grounds of federalism is therefore ass-backward.
Now, if you were to argue that a state should be forced to recognize a homosexual “marriage” created in another state, I would disagree with your opinion, but I would not challenge the very basis of your argument. Again, this is not about opinion; it is about a flagrant misstatement.
The point on federalism is the most important. There is absolutely nothing in DOMA that takes away a state’s opportunity to “recognize same-sex marriage.” Nothing. Zero. Zilch. Nada. Rien. What it does is ENHANCE a state’s ability to have its own, traditional definition of marriage be protected for all purposes of its own state law. This is not a matter of opinion. It is simple fact. Look, frankly, DOMA is not high up on my list of most pressing issues. I support it, but I’ll let others argue its merits if only because I write on so many other issues. But the issues on which I write most often are legal issues, and this decision by Obama is a legal matter. Goldstein completely misrepresents the legal subject at stake. In doing so, he mistakenly puts social conservatives in the position of forfeiting the conservative belief in federalism, when in fact their position is by the very terms of DOMA the position supportive of federalism. It makes them look like hypocrites, when they are anything but.
As for Obama’s decision not to defend the law, it is probably a blessing in practical terms, because his administration’s prior defense of it was so half-hearted as to actually undermine it. In constitutional terms, though, the decision is lawless, because there is no way under the sun that the president can legitimately claim there is no reasonable basis to defend the law’s constitutionality. Unless he can make such a claim, then he is obliged to defend it in the courts, and to do so forcefully, just as Ted Olson defended the campaign finance law for President Bush even while both disagreed with it. As the Washington Times wrote today, “Eleven circuit courts already have ruled that Mr. Obama is wrong….The unambiguous revelation this week is how radically removed Mr. Obama is from American public opinion, U.S. constitutional tradition and the mainstream of human history.”
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