In Defense of DOMA
Jul 13th, 2010 by David Anderson
The Defense of Marriage Act is a well crafted piece of legislation, however, its defenders in the Justice Department have given no historic context for its basis. The federal government is given power to determine which activities qualify for the full faith and credit clause. The main thrust of the act protects states from having to recognize a non traditional marriage from another state. That part of the law seems solid in Judge Tauro’s ruling late week.
The issue of benefits is quite another. This is the weakest area of DOMA. We all recognize that the states define marriage within there borders. The Federal government can do so in the territories and the District of Columbia. What is also at issue is the question of defining marriage for federal benefits and purposes. Can a state force the federal government to appropriate funds for a policy that it rejects? The judge ruled that the definition of marriage is solely in the hands of the states. He based it upon an historic brief from a Harvard Law Professor. The Justice Department could have destroyed that brief but it did not challenge the facts. Here is a simple rebuttal that you must read. It covers some of the history that I alluded to before, but it is a much more extensive review.
Defining marriage was a hot issue since the 1840′s and the federal government has been a part of it. A federal definition of marriage is not new and has been recognized by the Supreme Court. The states can determine marriage, but the federal government can determine which ones it recognizes for its Constitutional purposes. The federal government can not run the states, but the states can not run the federal government either.
