DOMA Decision Expected This Summer

02The Supreme Court announced in December 2011  that it will consider the constitutionality of the federal Defense of Marriage Act and California’s ban on marriage, two cases that could have a significant impact on marriage laws across the country.

The Defense of Marriage Act (DOMA), passed by Congress and signed by President Clinton in 1996, prohibits federal recognition of same-sex marriages. Both the First and Second Circuit Court of appeals have struck down a provision of the law denying federal benefits, like Social Security benefits or the ability to file joint tax returns, to same-sex couples legally married. Because of these lower court rulings, DOMA has been declared unconstitutional in some regions of the country but not others — an issue the Supreme Court now has a chance to rectify by reviewing the Second Circuit decision.

In response to the case, over a half million Orthodox, Catholic, and Evangelical Christians  in this country signed the Manhattan Declaration, a manifesto taking a stand on the sanctity of life, dignity of marriage, and freedom of religion.

On January 28, the U.S. Supreme Court received the Manhattan Declaration’s Amicus brief (friend of the court brief), submitted by attorney John Mauck,  outlining the Manhattan Declaration’s forward premonition and call to preserve the historic family unit.  “Natural law, the nature of the human person, and common sense provide ample reason to preserve marriage as it has always been understood.” Explained John Mauck, the Chicago attorney with the firm of Mauck & Baker, who submitted the brief on behalf of the Manhattan Declaration.

The argument develops further by explaining God’s plan for the family and the social pathologies which emerge when the primacy of family and children is subverted.  The brief sets out the natural law of the family unit, constitutional authority to establish what is best for the nation, and identifies social reasons to preserve tradition male-female marriage, identifying societal circumstances around the world that have accepted homosexual marriage resulting in a decline in function and a harsh increase in religious oppression.

The brief recounts advances because of Christianity through history saying that, “History confirms that Christians have, precisely because of their faith: defended innocent life; tended to the sick and dying during plagues…; extirpated slavery; tended to the poor and imprisoned…; toiled in the women’s suffrage movement; led the civil rights movement; fought to end human trafficking and sexual slavery; and brought compassionate care to the AIDS sufferers in Africa.”

The brief also refutes the public relations and litigation strategy of advocates of same-sex marriage that seeks to portray Christians and other defenders of marriage as motivated by rank bigotry or irrational animus. These accusations, as explained by Mauck, are not sustainable as a matter of human experience or a fact in society.   You can Stay up-to-date by receiving the Religious Freedom e-Alerts.

The House’s Bipartisan Legal Advisory Group  (BLAG)  enlisted legal  superstar Paul Clement to take up their pro-DOMA case.  In its brief filed  in January, BLAG   said the government shouldn’t go out of its way to look out for gay people’s  marriage rights because they already have “remarkable political clout.”  Specifically, BLAG advised the Supreme Court against classifying gays as a  “suspect class,” a group that’s likely to encounter discrimination.

“[G]ays and lesbians are one of the most influential, best-connected,  best-funded, and best organized interest groups in modern politics,” the brief  says, “and have attained more legislative victories, political power,   and popular favor in less time than virtually any other group in American  history.”

Ten U.S. Senators have also filed a “friend of the court” brief  defending the  constitutionality of the federal Defense of Marriage Act (DOMA), which limits  federal marriage to the union of a man and a woman contending that a lower district court failed to understand that federal law necessarily defines marriage is some fashion beyond mere incorporation of state law.   The Defense of Marriage Act passed both houses of Congress with the support  of more than 80%, “an overwhelming and bipartisan majority,” before being signed  into law by President Bill Clinton.

The law was passed, they said, largely in response to a situation in Hawaii,  in which courts appeared to be “on the verge of requiring that state to issue  marriage licenses to same-sex couples.” Congress was concerned that such state redefinition of marriage “would likely have unpredictable and inconsistent legal impacts on other states and the federal government.” The senators explained that when the law was enacted  there were 1,049 federal statutory  provisions in which marital status was a factor for benefits and privileges. “Congress clearly had a legitimate interest in determining how these  provisions would be affected by the recognition of same-sex ‘marriage’ in Hawaii  or other states,”

The Supreme Court Justices have  appointed Harvard Law Professor, Vicki Jackson to provide a view outside of the views presented before the lower courts as to whether or not there is an actual case before the court in Edith Windsor’s challenge to the 1996 DOMA law.

Professor Jackson is arguing that  “It is the Executive Branch, not Congress, that is obligated to “take Care” that laws are enforced (or in this case not enforced).   Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot alone assert.”

Remember, Obama decided in all his infinite wisdom in February 2011 that DOMA was not constitutional and ordered the Justice Department to stop defending it in court.   Should anyone be surprised that a liberal professor from a liberal college would  bow to Obama’s supremacy to declare which laws are or are not constitutional?

The justices have several options on how to come down in the Windsor v. United States challenge to Section 3 of the 1996 Defense of Marriage Act, which denies federal benefits to gay couples that are legally married in their states.

  • The Court could determine that Section 3 of the Defense of Marriage Act violates the Constitution’s guarantee of equal protection for all under the law, which  means that states that have legalized homosexual marriages would have to pay federal perks such as retirement and tax benefits to same sex couples.
  • The majority of justices could find Section 3 of DOMA valid under the Constitution. That would enshrine a status quo where gay married couples in states where same sex marriage is legal are treated differently than their straight counterparts under federal law.
  • The Supreme Court could potentially dismiss the case on procedural grounds, decide that the case was not properly defended and remand it to the lower courts to try again.

With the appointment of liberal professor Vicki Jackson it is beginning to look like the court is trying to find a way to send the case back to the lower courts.  Only time will tell.

Marriage as the union of one man and one woman is in the public good.  It serves the interests of men and women, of children, and of society itself.


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