In fact, Hillyer e-mailed me beforehand to demand that I “correct/withdraw/amend it so as not to cause any more embarrassment.” The embarrassment is his alone. Needless to say, I declined to do so. Besides Ross Kaminsky, another regular American Spectator contributor, liked the article. One article. Two opinions. Isn’t America great?
Clearly, my article hit a raw nerve with Hillyer. Yet if you strip away all the sound and fury there is little in the way of substance to his objections. For instance, Hillyer writes, “Obama’s decision ONLY affects Section 3 of DOMA. That’s it.” Yet consider what I wrote at the beginning of the article:
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.”
So I’m not sure why Hillyer is slagging me over Section 3 of DOMA when I fact mentioned it. Perhaps he didn’t get past reading the first sentence of my article. How else do you explain the following passage:
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-backwards.
Well, I guess I can be grateful that Hillyer for his selective use of block letters. Yet I don’t see how anything I’ve written warrants such vitriol. 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). I simply don’t see the need for federal involvement. Washington just gets in the way. So I reject Hillyer’s assertion that “DOMA protects state and local decision-making” is a matter of fact rather than opinion and so does Bob Barr who calls DOMA a case of “one-way federalism”:
It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws – including, immigration, Social Security survivor rights and veteran’s benefits – has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.
Let us not forget that Barr authored DOMA and has now come to regret what his creation unleashed. It’s not everyday that a politician publicly repudiates his own legislation.
As for President Obama, one can certainly fault him for his decision especially in view of the fact his Administration spent the first half of his term defending DOMA. Yet this is certainly not the first time the Executive Branch has declined to defend a law in federal court. Back in November 1992 the first Bush Administration announced it wouldn’t defend lawsuits brought against the federal government by cable operators against the “must-carry” regulation requiring cable operators to carry local programming. It is worth noting that the 41st President opposed the regulation and had vetoed the law enacting it but the veto was overturned by a Democratic controlled Congress. The Clinton Administration reversed the decision and would prevail in the Supreme Court against the cable operators. I don’t deny that President Obama’s decision with regard to DOMA is both highly unusual and was made for dubious reasons but he has precedent on his side.
In the final analysis, it is worth reminding Hillyer this isn’t the end of the world. The Obama Administration’s decision doesn’t guarantee DOMA will be either repealed or struck down. But if it is repealed or struck down then look for a movement in Congress to either reintroduce DOMA under a different name or for renewed efforts in support of a constitutional amendment to protect traditional marriage. Of course, if DOMA does outlast the Obama Administration then there’s a good chance a Republican Administration will undo this measure. Life will go on.