The general gist of the outcome from this week’s oral arguments on the marriage cases is that there are 5 Justices who are inclined to strike down the Defense of Marriage Act (DOMA), but not enough members of the court who see a constitutional right for a “gay marriage.” It was particularly disturbing to see that Anthony Kennedy has no understanding of DOMA. He asserted that “the question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.”
No, Justice Kennedy, the question is whether the federal government has the right to recognize marriage as what it was since the dawn of times – just for the purpose of federal laws that interact with marriage status. This idea that DOMA violates the federalism scheme is absurd. It never seeks to regulate or even define marriage in a way that precludes states from creating their own definition for marriage. It merely uses the definition of marriage accepted by 41 states (49 states at the time of its passage in 1996) and applies it to federal law. It also protects states that want to keep marriage a marriage from subsidizing gay marriage and from onerous lawsuits.
What it doesn’t do is prevent other states from adopting gay marriage. Indeed 9 states have accepted gay marriage since passage of DOMA. In fact, Chief Justice Roberts got Solicitor GeneralVerrilli to admit that the federalism argument is bogus:
CHIEF JUSTICE ROBERTS: Suppose your — you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say “marriage” in Federal law, we mean committed same-sex couples as well [i.e., whether or not married under state law], and that could apply across the board.
Or do you think that they couldn’t do that?
GENERAL VERRILLI: We think that wouldn’t raise an equal protection problem like this statute does, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn’t — you don’t think it would raise a federalism problem either, do you?
GENERAL VERRILLI: I don’t think it would raise a federalism problem.
So Verrilli has no problem with the federal government defining marriage in a way that includes homosexual relationships for the purposes of federal law. What happened to the argument that the federal government should “stay out of marriage?” It boggles the mind how people can continue to peddle this federalism argument even as the law does nothing to create or regulate marriage. The states have continued to do what ever they want since passage of DOMA. It’s unfortunate that Justice Kennedy has no idea what the law actually does.
Here’s a parting question: four of the liberal Justices held that the federal government had the power to coerce individuals to purchase health insurance. Yet, they are now saying that the federal government doesn’t have the power to merely recognize the definition of marriage that existed since the creation of mankind just for the purpose of federal law in a way that does not place any burdens on the individual?
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