By Rachel Brody |
Those seeking to redefine marriage into a genderless institution must be pessimistic about their chances before the Supreme Court, because they are doing everything they can to prevent the Court from deciding whether the traditional definition marriage, as expressed in the Defense of Marriage Act, is unconstitutional. The Department of Justice refused to defend the statute, despite the fact that it was overwhelmingly passed by bipartisan majorities in Congress and signed into law by President Clinton just a decade and a half ago. It now seeks to prevent the House of Representatives from defending the statute, so that the Court would not even have jurisdiction to hear the case.
But existing precedent is pretty clear—the Department can't deprive the Supreme Court of jurisdiction merely by refusing to do its duty and defend an Act of Congress; in such circumstances, Congress itself can intervene to defend a statute it passed.
Others have argued that the Court should avoid the key constitutional issues altogether, claiming instead that by defining "marriage" for purposes of federal law, DOMA intrudes on states' rights and therefore violates basic principles of federalism, because marriage and family law are part of the core powers reserved to the States. The silliness of this argument can be made clear by a simple analogy. Property law, too, is a core power reserved to the states, but the federal government allows for a deduction from one's federal income tax for mortgage interest paid for one's primary residence. Suppose Massachusetts redefined "residence" to include "automobile." That would certainly not allow Massachusetts citizens to deduct interest on their car loans from their federal income taxes. The definition of "residence" for purposes of federal law would be that provided by the federal government, not by each individual state.
In the end, then, the Court must address whether traditional marriage violates the commands of Due Process or Equal Protection. Due Process protects fundamental rights, and the Supreme Court has described marriage as one of the "basic civil rights of man" because it is "fundamental to our very existence and survival." That is true, of course, only because marriage is the institution designed to foster the unique procreative abilities of men and woman and for the children that result; redefining marriage to cover other kinds of relationships is therefore not mandated by the Due Process Clause. That fundamental biological fact also answers the Equal Protection challenge. Equal Protection requires that people "similarly situated" must be treated similarly. Because marriage has as one of its core purposes the encouragement of responsible procreation, opposite-sex and same-sex relationships are simply not similarly situated with respect to that purpose, and it is no denial of Equal Protection for Congress to adhere to the traditional view of marriage.
About John C. Eastman Chairman of the Board of the National Organization for Marriage
Penny Nance President and CEO of Concerned Women for America
Chad Griffin President of the Human Rights Campaign
Stacey Long Director of Public Policy and Government Affairs at the National Gay and Lesbian Task Force
Chris Gacek Senior Fellow at the Family Research Council