LLR Pages

Thursday, March 3, 2011

The Conservatives' Opposition to Obama's Rejection of the Defense of Marriage Act (DOMA)

The Republican support for the Defense of Marriage Act (DOMA) reached an all-time low this past week when conservative Republican favorite Congressman Ron Paul (in many circles of the Liberty movement), Newt Gingrich, and many others stated their outright objections to President Obama's ardent abandonment of the law by viewing it as "unconstitutional." (Ironically, it was former Georgia Republican Congressman Bob Barr who later ran for President on the Libertarian Party ticket originally drafted, supported, and lobbied for the passage of the law in 1996, which was a clear-cut bipartisan compromise between the duopoly parties and would be signed into law by then-President Clinton. He now claims to oppose the Federal Marriage Amendment and endorses a bill oddly dubbed as the Respect for Marriage Act which, if passed and signed into law, would repeal DOMA, but for now I'll cautiously take his word for it.)

It makes one in the left-libertarian camp cringe to say that Barr, if he is indeed sincere about his opposition to the law that he himself created and pushed in the mid-1990s, is more libertarian than Paul on this issue, and one would not be required to make that statement lightly. U.S. Attorney General Eric Holder issued a public declaration, stating:

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional.

Holder continues:

But while both the wisdom and the legality of DOMA will continue to be the subject of extensive litigation and public debate, this administration will no longer assert its constitutionality in court.

Obama's White House Press Secretary Jay Carney vouched for Holder and came to his defense by going on public record, noting:

The Administration will not defend the Defense of Marriage Act in the 2nd Circuit. [T]he President directed the attorney general not to defend because of the decision that it is not constitutional.

Ron Paul, in a par-for-the-course yet still disappointing fashion, aimed his missiles primarily at Holder and even at Obama with this press release:

The Defense of Marriage Act was enacted in 1996 to stop Big Government in Washington from re-defining marriage and forcing its definition on the States. Like the majority of Iowans, I believe that marriage is between one man and one woman and must be protected.

I supported the Defense of Marriage Act, which used Congress’ constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause, to ensure that no state would be forced to recognize a same sex marriage license issued in another state. I have also cosponsored the Marriage Protection Act, which would remove challenges to the Defense of Marriage Act from the jurisdiction of the federal courts.

The people of Iowa overwhelmingly supported, both houses of the Legislature passed, and the Governor signed into law the Iowa Defense Of Marriage Act in 1998. Iowans then valiantly recalled three activist Judges who spurned the will of the people by over-turning the state’s law.

Today’s announcement that the Obama Administration will abandon its obligation to enforce DOMA is truly disappointing and shows a profound lack of respect for the Constitution and the Rule of Law. President Obama has just unconstitutionally said that Iowa should have to allow San Francisco and New York City decide its marriage laws. That position is unacceptable.

The Administration’s dereliction throws the door wide open for special interests to abuse Federal power and attempt to force Iowa to recognize non-traditional marriage. Upcoming battles are looming just over the horizon.

I will stand with the people of Iowa, against Unconstitutional federal power grabs, and will fight to protect each state’s right not to be forced to recognize a same sex marriage against the will of its people. If I were a member of the Iowa legislature, I would do all I could to oppose any attempt by rogue judges to impose a new definition of marriage on the people of my state.

Former House Speaker and frequent Fox News guest, and conservative author and commentator Newt Gingrich* leveled his attacks on the Obama administration with this following smear:

The president is replacing the rule of law with the rule of Obama. The president swore an oath on the Bible to ensure that the laws be faithfully executed, not to decide which laws are and which are not constitutional

(*Note: It is entirely unsurprising, typical, and pathetic to hear this from a conservative hypocrite whose staunch defense for "traditional marriage" and "traditional family values" is undermined by his wreck of a marital life. How? It's much simpler than you think. He divorced his first wife for a woman whom he married and later divorced as well after he was caught having an affair with a congressional staffer at the height of his involvement in the Republican witch hunt against Bill Clinton during the Monica Lewinsky scandal. He even didn't want to be viewed as a hypocrite then, but he doesn't get a free pass on that deal. He didn't then, and he still doesn't now.)

House Judiciary Committee Chairman Congressman Lamar Smith, whom Ron Paul ubiquitously supported in early 2010 which proved that he sold out the Liberty movement for doing so, shared similar sentiments with his rank-and-file Republicans via this nasty comment:

[T]he politicization of the Justice Department -- when the personal views of the president override the government's duty to defend the law of the land

All of these right-wing talking points made by the above-mentioned usual suspects are indicative of the politically-charged, homophobic-laced statist Republican agenda
that serves to kowtow to the special interests of the loopy conservative (religious and secular) establishment and its cohorts. These clods who monopolize on the cultural and public moralities upon which the Right and its voter and member bases
depend possess this aberrational, detestable notion that any state-approved sanction of, support for, and codification of same-sex marriage at the federal and/or state level is tantamount to domestic federal intervention in the private affairs

The Social Conservatives' Culture War Employed to Undermine Same-sex Marriage

At the forefront of the scrutiny of Obama's decision to jettison DOMA is the social conservatives who have waged a long-standing culture war with the Left because in response to the rise, popularity, and dominance of the counterculture of the 1960s. Former Arkansas Governor Mike Huckabee, who appeared on Judge Andrew Napolitano's FreedomWatch on Fox Business on February 25 and has been a very staunch populist social conservative on items like "traditional marriage" and "traditional family values," took great steps to fight the culture war to undermine Obama's rejection of DOMA when he took potshots at Obama's legal decision by declaring it "legally wrong, but more importantly, he was politically wrong, and [Obama] was morally wrong." Then he added, "He was wrong on every front."

Interestingly enough, Huckabee stressed:

[I]nterestingly, Chapter one of my book talks about why issues like marriage and family matter. Uh, the very first chapter is that the very most basic form of government is the family. This is where we first experience government at its most local level. It's not the city, the state, the federal government. It's mother and father raising children; that is government.

Then, when asked whether families can be non-traditional and what business the government has in the institution of marriage, the former government rejoins:

Well, here's the question: what is marriage? Marriage is a man and a woman. That's what it is historically. That's what it is legally. If we change the definition to accommodate a man and a man or a woman and a woman, then why can't we accommodate a man and two women or a woman and three men?

When Napolitano points out that marriage is a legal contract between two individuals and that the State has no business to interfere with it, Huckabee then claims:

The business of government is to ensure that we have a stable society, because we have a $300 billion a year dad deficit in this country. That's in Chapter one. I talk about the fact that this is an economic issue. As a libertarian, Judge, you've got to love the fact that we're spending a lot of money to pick up the pieces 'cause fathers don't do their duty.

This exchange between him and Napolitano is endemic of the social conservative paradigm that has infested the Republican Party and its core base. It is ample evidence showing that the culture war between the social conservatives and the pro-same sex marriage legalization camp is running primarily based on populist politics and antiquated religious dogma cloaked in theocratic rhetoric, and the rush to defend the definition of marriage is greater than the public at large believes. This is also evidenced by the strawman argument levied against pro-gay marriage advocates that opposite-sex marriages are a product of the conservatives' Christian God and "6,000 years of recorded human history," as Huckabee ludicrously suggests.

Has Huckabee studied human history at all? Is he aware of the fact that King Henry VIII and other kings (even emperors) have been in opposite-sex marriages, all the while choosing and retaining mistresses for their strict sexual, political, and royal pleasures? Is he also aware that the Vatican (a.k.a. the Holy See) has often in its recorded history condoned the actions of despotic rulers for engaging and indulging in fornication with, lust for, and lustful control of women who were nothing but second-class sexual property in their eyes? For over 6,000 years, "traditional" marriage has never existed at all, given that, within the last 60 years, it has been nothing but a religiously-charged political, cultural, and social contrivance propagated by the conservative wing of the Republican Party.

While it is true that many men throughout the modern ages have married women for the sacrosanct need to produce and rear children and create families, patriarchs and even Biblical prophets in ancient times (such as Saul, Solomon, David, and Abraham according to the Old Testament of the Holy Bible) had practiced polygamy, which is the practice of men marrying multiple wives simulanteously. (Polyandry on the other hand, which was practiced more exclusively in parts of China, northern parts of India, and by various nomadic Tibetans in Nepali, is the practice of women marrying multiple husbands simultaneously.) Even today's social conservative establishment would view these practices outside the norm, despite the fact that polygamy was extremely common in earlier Christian times. How can Huckabee reconcile "traditional marriage" and "traditional family values" in the conservative tradition with his religion that evolved from an earlier form of Christianity that permitted these customary practices? Has he failed to see that his Bible has referenced polygamy that was once considered to be an element of Christianity in Biblical times, or does he disavow that fact? Either way, his ignorance of an old custom that was part of his faith is evidence of his ilk's passive misguided ideal, and the fact that his lack of knowledge on the subject is solid cannot be challenged, even if it is addressed. The notion that "traditional marriage" has been part of humanity from time immemorial is ludicrous, as historical evidence indicates the opposite.

The religious propaganda coupled with political zealotry of this camp knows no bounds. The culture war that has been issued to undermine -- and perhaps demolish -- same-sex marriage has been unleashed.

Joanne Pedersen, Edith Windsor, and Gerald V. Passaro II: The People Behind The Obama Justice Department's Decision

At the heart of the Obama Justice Department decision involved two gay individuals who filed lawsuits in New York and Connecticut. This comes after the Obama DOJ review two cases - Pedersen v. OPM and Windsor v. United States.

Joanne Pedersen, the chief plaintiff in the Pedersen v. OPM case according to the New York Times, objects to the DOMA law being applied against her when she applied for medical benefits for her married partner Ann Meitzen via the Office of Personnel and Management agency. She was denied again, which is not unusual in her case. She and Meitzen have filed a lawsuit against the federal government for discriminating against her on the grounds of her marriage (which is legal under Connecticut law) being not legal at the federal level thanks to DOMA. According to the Times:

To Ms. Pedersen, the question is one of justice. She and Ms. Meitzen, who married in 2008, have been together in Connecticut for 12 years. Ms. Meitzen, a social worker, has had health problems, and Ms. Pedersen, a civilian retiree from the Department of Naval Intelligence, tried to enroll her spouse in the federal employee health benefits program — a move that would save them hundreds of dollars a month.

Both women had been married before, to men, and have grown children. The fact that the law values one of their marriages over another is a source of consternation, Ms. Pedersen said.

'If we were heterosexual, we wouldn’t be talking today, because we would have the benefits,' Ms. Pedersen said. 'I would just like the federal government to recognize our marriage as just as real as everybody else’s.'

Maggie Gallagher, the Chairwoman of the National Organization for Marriage (a social conservative special interest group which opposes same-sex marriage), told the Times that legal challenges to DOMA in the courts are indicative of gay rights advocates who "continue to push a primarily court-based strategy of, in our view, inventing rights that neither the founders nor the majority of Americans can recognize in our Constitution."

Edith Windsor, another plaintiff and a widow of her lesbian spouse Thea C. Spyer, filed her suit with the legal firm Paul, Weiss, Rifkind, Wharton, & Garrison in league with the American Civil Liberties Union on the grounds that, if the law allowing opposite-sex married couples to file for exemption on their estate tax had been equally applied to her as a same-sex married woman, her filing of her spouse's estate taxes estimated to be about $350,000 would be zero. Asserting "disparate treatment," she's challenging the constitutionality of DOMA, as it defines "marriage" as "a legal union between one man and one woman" and "spouse" as "a person of the opposite sex who is a husband or a wife." Imagine the social conservative reaction to those suits.

The Obama DOJ issued a Washington Post op-ed in November 2010 which was reprinted in its editorial board, a statement on these two cases, which states the entire following:

Edith Windsor and Thea Spyer were together for 44 years and legally married since 2007. They lived in New York, which recognizes same-sex marriage. But none of that mattered when Spyer died at 77 in 2009 after a decades-long struggle with multiple sclerosis.

Windsor, now 81, was treated like a stranger to Spyer because of the federal Defense of Marriage Act, which recognizes only marriages between one man and one woman. She was forced to pay $350,000 in federal inheritance taxes.

Gerald V. Passaro II and Thomas M. Buckholz had been a couple for 13 years when they were married in 2008 in Connecticut, which legally blesses such relationships. Buckholz had worked for 20 years for Bayer Corp., which extends certain benefits to domestic partners; he was also vested in the company's pension plan. But when he died in 2009, Passaro was denied benefits for surviving spouses. Because federal law governs the pension plan, DOMA applies.

This month, Windsor filed a lawsuit in New York challenging the constitutionality of DOMA. Passaro is one of the plaintiffs in a separate lawsuit in Connecticut. Their experiences demonstrate the injustice of this law. DOMA was created for the purposes of 'defending and nurturing the institution of traditional heterosexual marriage,' 'defending traditional notions of morality' and "protecting state sovereignty and democratic self-governance" -- dubious goals, at best.

How does the denigration of committed same-sex relationships strengthen opposite-sex unions? How could it be moral to pile hardship upon grief by forcing surviving spouses to deal with financial strains others are shielded from? How is federalism bolstered when states are prevented from applying policy and legal preferences in defining marriage, long considered the states' domain?

This year, a Massachusetts judge ruled that DOMA violated the equal-protection rights of same-sex married couples. Windsor and Passaro offer convincing arguments for why the jurists overseeing their respective cases should reach the same result.

Plaintiffs nationwide will probably try to chip away at DOMA's indefensible foundations. And the Supreme Court may yet have a chance to weigh in. But justice would best and most gratifyingly be served if Congress simply repealed the law, once and for all.

Why The Social Conservatives in the GOP Are Wrong

The social conservatives in the GOP are wrong to relegate gay couples who want to legally marry to second-class citizenry for all sorts of reasons, political and otherwise. One reason is that this is a human liberty issue all the way. Human liberty is neither some pie-in-the-sky concept nor abstraction; it's about how one chooses to live one's own life, and what relationships in which one wishes to engage. As long as one harms no one else, that's all that matters. As oversimplified as that idea may be, it is nothing but the correct one. We are talking about gay and lesbian couples who are routinely denied legal, normal, and mutual benefits of marriage that are afforded to married heterosexual couples - benefits entailing hospital visitation, custody of children, medical-making decisions for incapacitated partners (such as power-of-attorney choices and so on), next of kin matters, and more. Social rightists can be as glib, callous, and condescending as they want to be on the subject, but this is certainly a pressing concern. If one gay couple's liberty isn't protected, then all couples -- even the common law married ones -- will find that their liberties are subject to the whims of the vile State. That's not freedom; that's slavery nonetheless.

Another reason is that the State should not be involved in the sphere of the institution. No argument there. However, in the interim, until that goal is successfully achieved, the State in its current set-up should be evenhanded in its decisions regarding the issuance of marital licenses to couples who seek to unite in wedded bliss. Social rightists say that state-protected heterosexual marriages must be protected, because they are the foundation of a stable and functioning society. How foolish they are! The State has seriously undermined freedom of association, the family, and marriage by involving itself in those three key matters. (How conservatives believe that the State's meddling in the institution of matrimony is the savior of the modern family is perplexing, but that's Rightist "logic" for you.) Interracial marriages were once outlawed at the state level once until the Supreme Court intervened by ruling in 1967 that such laws violate the Fourteenth Amendment's Equal Protection clause in Section 1, which reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Whether conservatives like it or not, the Fourteenth Amendment exists. By refusing to accord the same rights to homosexual couples the legal right to unite in wedlock, they are violating the tenet and spirit of that amendment. No ifs, buts, or whats about it! (If they want to throw a conniption over it, they can check out the old Loving v. Virginia case and come to their own conclusions about it. Otherwise, they need to get over it once and for all.)

Another reason they are wrong on this matter is that marriage is set up for reasons other than procreation. Yes, social conservatives do believe that marriage is only for procreation, and they have nothing to back up this claim whatsoever. If there were a kernel of truth in that talking point, then infertile and childless couples would be barred from entering in these contractual agreements in the first place. Couples marry for all sorts of reasons not relating to child rearing: economic security, emotional support and love, and so on. (Stephen Horwitz, The Freeman's contributing editor, wrote an outstanding column which chronicles this point.)

Moreover, the welfare state plays a role in the problem as well. Huckabee is right to say that there is a "dad deficit" in the heterosexual family unit today, but he is echoing words that many conservatives in the past have expressed. (Even former Vice President Dan Quayle said in public regarding the title character of the old hit CBS TV show Murphy Brown having a child out of wedlock in 1992.)

However, the reason the "dad deficit" exists because of the welfare state, not because of purported looming threat of gay marriage. Huckabee may be against single parenthood (like Quayle was), but he is merely politicking for his own amusement. That said, other divorced conservatives and single conservative parents are unlikely to support Huckabee, given that the GOP would be making a huge mistake in this endeavor. (Perhaps such a view on that would alienate their constituency that are made up of broken-up, dysfunctional divorced families, as CATO's own David Boaz once suggested, but that's a lame cop-out if there ever is one.)

Finally, DOMA supercedes the states' authority to decide what laws can and will be enacted in their own jurisdictions. Conservatives, who claim to be "strict constructionists" (meaning that the federal courts, including the Supreme Court, must be constrained to what they perceive to be their ideal interpretation of the Constitution), believe that the federal law must be protected because it grants states the power to legislate bills favoring heterosexual marriages. But the law merely undermines states from deciding what the definition of marriage should and/or should not be. (Not that the states should decide what that definition is, because such definitions provide excessive amounts of wiggle room.) Besides, in the absence of the law, it is not as if the states can't write their own bills and decide what that definition is. State constitutions have been amended by voter referendum in nearly every state to reflect the definition as "one man and one woman" anyway. Have social conservatives totally forgotten about that, or are they just plainly lazy?

Considering gay marriage as a legal option is a much more appealing alternative to failing heterosexual unions, it cannot be overstated that one out of two heterosexual marriages are ending in divorce, and the rates are climbing. Part of that is due to the reality that heterosexuals are widely perceived to be the reason for the decline of straight marriage, Stephen H. Miller argues. The Pew Research Center's new study even validates this further, stating that one out of four Americans believe that heterosexual marriage is becoming an extinct species of its own.

Obama has done the right thing: rejecting DOMA and pave the way for individuals (primarily gays and lesbians) to legally marry. Conservatives, if they really care about the modern-day American family as they purport, should sit this out and let things play out the way they have been. Otherwise, they'd be committing political suicide, and that alone could cost them re-elections for 2012.

Not only that, it's the only right thing to do. Nothing more and nothing less.