The Defense of Marriage Act Is Constitutional

The Obama administration should defend this valid law.

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Tony Perkins, a former member of the Louisiana legislature, is president of the Family Research Council.

In 1996 the federal Defense of Marriage Act was passed by large majorities in Congress and signed into law by President Clinton. It has two parts: One prevents states from being forced to recognize other states' same-sex "marriages"; the other defines marriage as the union of one man and one woman uniformly across all federal programs and statutes.

Four federal courts have already upheld the law's constitutionality. But last July, a lone federal judge in Massachusetts declared its federal definition of marriage unconstitutional. Other challenges are pending. In response, Attorney General Eric Holder announced recently that the Justice Department would no longer defend that provision's constitutionality.

[See editorial cartoons about gay marriage.]

But the Constitution requires the president to "take care that the laws be faithfully executed," which historically has included defending them in court. In this case, President Obama is making a dangerous exception based upon personal and political considerations, leaving the law twisting in the judicial wind, even though it is absurd to argue that there is no reasonable case in its defense.

The challenges ostensibly seek only federal recognition of same-sex "marriages," which are legal in five states and the District of Columbia. But this is a Trojan horse for imposing same-sex "marriage" nationwide, since the constitutional arguments being offered represent a challenge to all laws that define marriage traditionally.

Before the modern effort to redefine marriage gained momentum, there was never a suggestion that the male-female relationship that produces the children who will carry society into the future could not be given special status under law. It has been this way in the United States for over 200 years and repeatedly recognized as such by the courts.

The potential to produce children naturally is unique to opposite-sex relationships. It is not the law that "discriminates" based on "sexual orientation"—it is nature.

Additionally, it is the powerful dynamic of a mother, father, and children that creates those bonds of family that form the bedrock of all societies and provide the best environment for raising children—as social science has clearly demonstrated. Children need both a mom and a dad, not just two adults. These are compelling, scientific reasons to define marriage as the union of a man and a woman. They expose the arguments of same-sex advocates as self-serving talking points with no basis in human nature and American history.

Court precedents defining marriage as a "fundamental right" rest on the presumption that it is a male-female union. Same-sex "marriage" proponents are not only seeking to exercise this right to marry. They are trying to fabricate an entirely new right, redefining the institution of marriage at its very foundation by judicial fiat.

[See a slide show of the Supreme Court justices.]

The Constitution leaves the decisions concerning such complex social arrangements to the people. They determine through their representatives the best way to structure such laws. As the abortion wars since Roe v. Wade make clear, there is wisdom in not leaving such questions to the choices of the courts. And there is the rub. Proponents of same-sex "marriage" know that 45 states do not accept their vision of U.S. sexual-familial arrangements. So they work to impose their will on the nation outside the democratic process.

There is nothing in our Constitution that mandates same-sex "marriage." The law reflects timeless realities of human nature and family structure. It is unquestionably constitutional. And families, as they have always been understood, still matter.

Read the Human Rights Campaign's Joe Solmonese on why the Defense of Marriage Act is unconstitutional, and cast your vote on the issue.

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