Concering the arguments and discussion before the SCOTUS yesterday on the Defense Of Marriage Act [DMOA], once again I decided not to address the arguments before the Supreme Court until I had listened to and read the analysis of people I respect and had spent sufficent time in contemplation of the issues involved.
My conclusions are pretty much in sync with Mark Levin’s, so much of what follows, in part, mimics the remarks he made on his radio show last night…
-Here is the Act in it’s entirety:
One Hundred Fourth Congress of the United States of America AT THE SECOND SESSIONBegun and held at the City of Washington on Wednesday, the third day of January, one thousand nine hundred and ninety-six
An Act
To define and protect the institution of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Defense of Marriage Act’.
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof
`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
`1738C. Certain acts, records, and proceedings and the effect thereof.’.
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
`Sec. 7. Definition of `marriage’ and `spouse’
`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
`7. Definition of `marriage’ and `spouse’.’.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
Section 2 affirms the understanding of the Full Faith And Credit Clause that I wrote about yesterday in my post: SCOTUS, Prop. 8, The Full Faith And Credit Clause. I would just add this Section merely re-enforces the Clause.
-Section 3 is the one that really sticks in the craw of the Left [and some on the Right who misunderstand it's meaning and purpose].
As Mark Levin said, the national government has the right to ‘police itself’, to set policy for how it will approach situations that come before it, to be able to craft a set of standards in processing the data it needs to process so it can conduct it’s daily business, to determine how benefits will be distributed.
With this law, the national government is not telling the state how to regulate and define marriage. If you look at statutes, be they state, national, etc. you will notice chapters of the law often begin with a section of definitions of what certain words will mean in the context of the covered chapter or chapters [Ex: 'For the purposes of this statute, x shall mean....'] — this is all DOMA does.
How is any of this violating state sovereignty? How is this violating Federalism? DOMA does not touch state law.
Ed Whelan writes:
The fact that DOMA defines marriage and spouse for purposes of provisions of federal law does not mean that it regulates marriage and intrudes on state authority over marriage. For anyone confused on this point, consider this:
Property law, like marriage, is a matter within state authority. The federal government provides a tax deduction for mortgage interest on a taxpayer’s primary residence. Suppose the state of Massachusetts were to redefine “residence” to include an automobile. Would the federal government be obligated to give federal taxpayers in Massachusetts a deduction for the interest on their car loan? Or could the federal government, without intruding on state authority over property law, define residence for purposes of federal law to exclude automobiles?
Surprisingly for a Federal statute, this Section is written is pretty clear and direct language.
And, of course, because DOMA is merely a law, and not a Constitutional provision, the Congress can repeal or amend it at any time, relatively easily.
The Courts should not be involved in this issue at all. It is a matter for the Sovereign People to decide through their elected Representatives in the Congress. This issue does not rise to the level of Constitutionality.
-More from Ed Whelan, quoting Justice Alito:
…I also liked this line of questioning from Justice Alito, which he posed to Paul Clement (pp. 76-77), then later (p. 99), in slightly different fashion, to plaintiff’s lawyer [BOB: the transcript may be found here (PDF)]:
JUSTICE ALITO: Well, Congress could have achieved exactly what it achieved under Section 3 by excising the term “married” from the United States Code and replacing it with something more neutral. It could have said “certified domestic units,” and then defined this in exactly the way that Section 3 — exactly the way DOMA defines “marriage.”
Would that make a difference? In that instance, the Federal Government wouldn’t be purporting to say who is married and who is not married; it would be saying who is entitled to various Federal benefits and burdens based on a Federal definition.
What this shows, of course, is that Congress’s use of the word marriage for purposes of provisions of federal law, when it could have used, to identical effect, the term certified domestic units, shouldn’t confuse anyone into thinking that Congress is intruding on state regulation of marriage.
Marriage is clearly, has historically been, a matter for the Several States to regulate, but the national government needs to be able to set it’s own policies and standards so that it may carry-out it’s duties and obligations under it’s enumerated powers.
-As for the whole issue of whether the state at any level should be involved in Marriage: obviously that is not one of the issues before the SCOTUS right now — although a number of people would like it to be. I hope to address this in a future post, but the research required is extensive and, perhaps, the contemplation of said research will take some time.
UPDATE at 1921: Corrected error in the coding of the text for DOMA. Apologies for the missing language.
