The Supreme Court declares DOMA unconstitutional
The big news of the day, which I am sure you have already heard, is the Supreme Court’s decision which ruled DOMA, the bill signed into law by President Clinton, unconstitutional based on the equal protection clause.
My take on this decision is not going to be popular with many conservatives, but here goes:
I firmly believe that the government should not be involving itself in the issue of marriage; what two or more consenting adults do in the privacy of their homes is their own business, it is not the business of the government. But the government has involved itself in marriage and until or unless the government removes itself from the issue of marriage–or the people remove the government from this issue–I think it is important that government involvement be contained to where it should be.
I am a huge states rights advocate who believes that most issues which are now being debated on the Federal level are actually issues which should be debated at the State level. The leftists would normally deridingly refer to me as ‘tenther’ most of the time, but somehow I do not think they will oppose me as they read what I am about to write. Marriage is one of the issues, in my opinion, which belongs at the state level, and my opinion has not changed. All you have to do is read my ‘About Me‘ page to see I have not wavered from this position:
I believe that gay marriage is a state’s rights issue. If a state legalizes gay marriage through the proper process I am okay with that state’s right to do so. Vermont legalized civil unions in the proper manner. The people elected politicians who supported civil unions, legislation was introduced and passed, and Howard Dean signed the bill into law. New Hampshire passed gay marriage in the proper manner, using the same process.
Please keep in mind that I am talking about marriage from a legal perspective in the eyes of the law and not referring to the religious aspect of the union nor the moral aspect of the issue–these are separate issues. I am in no way stating the government can tell a religious institution who can or must be married in the eyes of God, and I am in no way stating that churches must adhere to the laws of man or country. In the end the churches and the people answer to a higher authority than the State and they will meet the judgement for their actions when the time comes.
If a state has a legal definition of marriage which allows for the legal union of two men or two women, and the federal government is supposed to provide benefits to all legally married couples, how can the Federal government then pick and choose which legally married couples will receive these benefits and which ones will not?
This is where the equal protection clause kicks in and this is what the Supreme Court used in rendering its decision. Unless the Congress passes, and the people vote on a constitutional amendment, which bans gay marriage there is no way, in my opinion, the government can deny benefits to people who are legally married in the states in which they reside. We can argue the merits of judicial review but as of right now it is an accepted practice and until that changes we are bound by it.
This decision has handed authority on this issue back to the states and that is where I think it belongs and that is why I support this decision. If you do not like what your state is doing the time and the place to show your displeasure is at the ballot box in state and local elections. This is a basic principle of American republicanism and that is where the people should look to effect change if they do not the direction in which the government is headed.
America's Watchtower 
Steve,
Excellent! You already know I agree with your take on state v federal authority on marriage. I go even further and believe that marriage is a religious rite – ceremony. People can only be ‘married’ if the ceremony was performed by clergy. Anything else should be called a legal civil union. Just as circumcision is only a bris when it is performed by a Rabbi in a Jewish ceremony; dunking someone in water is baptism only when it is performed in a religious ceremony; eating a saltine (or whatever is used) is only the Lord’s Supper when it is performed as a religious rite. A union between two consenting adults (same sex or opposite) can only be called marriage when it is performed by clergy in a religious marriage ceremony.
Unions have been called marriage whether they were religious or civil, but I don’t believe those words are interchangeable. Churches, religious texts define marriage. Different churches/denominations define it differently. Some churches have no object to same sex couples, welcome them into their congregations and will marry them. Other churches see them as abominations. That is their right to do so. The government was granted no authority to involve itself in marriage or civil unions – that belongs to the states. States have no authority to force a church to perform a marriage or union that is against their teachings. Likewise, churches cannot dictate to government that it must define marriage or civil union according to their beliefs.
We must keep religious beliefs and teachings out of our laws or we will become a theocracy. Even worse, it would open the door to other religions demanding that our government pass laws for everyone based on THEIR religious beliefs and teachings. No one wants that.
I know that Christianity is the major religion in our Country, but our Constitution protects against the majority trampling the minority.
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Thanks Laura, I was really looking forward to hearing your comments on this post. I also agree with you on civil unions although I didn’t mention it here. In my ‘About Me’ page I also state that I am opposed to gay marriage because marriage is a religious institution first and foremost and state that because marriage comes with certain legal benefits I support civil unions as an alternative because it grants gay couples with the same rights as straight couples, it seems like a legitimate compromise to me if we are not going to remove government from marriage..
When I wrote about judicial review I was going to mention NFP’s position on this issue but in the end I didn’t, maybe I should have.
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From Scalia’s and Thomas’s dissent
“But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotationmarks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.”
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It certainly is a stunning statement and that brings into question something that I alluded to, judicial review.
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Nobody knows what Kennedy will do, but for him to sign on to that outrageous language is beyond belief.
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Well said my friend and I couldn’t agree with you more. I believe that no governmental power, state or federal has a right to define marriage. But it is what it is and we must address the issue in the real world and not in the fantasy world of no government intervention. Your spot-on in your analysis. Great post.
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Thanks John.
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You’re right that the issue has been handed back to the states, but the proviso is the state will adopt the liberal difinition of marriage. The LGBT now has been given federal fiat to sue any state that fails to adopt same sex marriage. So much for community standards and state’s rights. Conservatives should not pick unnecessary fights with the left because the consequences may be worse.
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I think they probably would go after the states anyway, but you are right this probably gives them more ammunition.
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I understand your analysis and agree with it, in part. The trouble I am having is with the decision handed down on California’s Prop 8. It seems to me that the people have spoken in California when they passed Prop 8. Their will has been circumvented by the courts and when they tried to defend their decision, the courts told them they had no standing to do so.
I am a strong believer in states rights, but it seems to me that the court is trying to have it both ways with these decisions. They removed DOMA, which is probably the correct thing for them to do. At the same time, they did an end run around the rights of the people of California, who voted by a good margin to ban gay marriage. How is this not contradictory?
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I agree with you on the prop eight decision; the people of the state spoke that the state has basically said to them that it does not care what they thing because the state will do what it wants, and SCOTUS just backed them up. I think something was funny with the prop eight decision because the time to decide if there is standing to take on a case it should have been done when SCOTUS reviewed which cases it would hear in the first place. It seems to me as if the SCOTUS punted this issue away instead of taking it on and I cannot figure out why.
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I am afraid their decision will open the issue up for a host of future lawsuits. Every state that passes a law or constitutional amendment banning gay marriage just had a bulls eye plastered on their back. I fail to see how the Prop 8 decision does anything but cut the legs right out from under states rights.
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You have made a great point about these two decisions contradicting each other; in one case they sent the issue to the states, and on the issue directly involving a state they took the state out of the equation. I am totally confused as to how the same court could make two decisions which are at odds with each other on the same day.
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Not unlike the other two branches of government moral cowardice holds sway among its ranks…
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Steve, are you blocking comments? I tried 2 times to post what I had, I still have it copied so I can try to paste it later,,,both times WordPress would not let me post it. Hmmm, I had a negative comment about the President, are the monitoring now?
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Didn’t I read that Obama said he would not force churches to marry a same sex couple, for now? How dare he think he could do that, but we have seen stranger things happen. I do not think the Government has any business in this. States should take more control than they are doing, that may be our downfall, they should start speaking up. I am really getting sick of people sticking their noses in where they do NOT belong. What happens in someone elses bedroom is NONE of our business. This used to be the “land of the free”, is it still, or does it come with stipulations now?
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Ok, it posted, I was going to be a bit upset if we are being monitored what we put now by, “whoever”.
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That was odd Lou, maybe wordpress was having some issues but it really does say something about our leaders when we can legitimately think that we are being monitored and moderated from above.
As for your comment, you are right on; why the hell does Obama even think he has the power to force church to marry gay couples in the first place. he really does think he power is limitless at this point.
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Steve he does bot have to force them. Liberal states do not have to recognize marrigaes performed in churches. Chip chip.
It seems the LDS are afraid that polygamy will make a come back.
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I hadn’t thought about liberal states not recognizing church marriages before, that is an interesting point.
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Steve, because many religious leaders are fearful of losing their tax exempt status. Liberal states will pass laws to not recognize marriages by individuals who will not perform same sex marriages. This will place an undue burden on some couples who do not believe in civil unions, chip chip
Apparently, the Church of LDS is concerned polygamy will make a return.
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That is interesting, i hadn’t thought about that.
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Legalize Polygamy! Now every type of deviant lifestyle is going to be thrown in our faces. If you want to keep your children safe take them out of government schools
With the left if you give them an inch they will take a mile
http://www.slate.com/articles/double_x/doublex/2013/04/legalize_polygamy_marriage_equality_for_all.html
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These social arguments are honestly doing nothing for the GOP nor are they helping solve the nation’s problem. If two consenting adults want to be legally joined then let them. See your priest if you want to say “I do.”
KISS… keep it simple, stupid!
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I agree, while the Republicans think they need to pass immigration reform to help them win in the future I believe these issues hurt them more because the Hispanics are such a small portion of the vote.
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