United Liberty
Ron Paul Gets It Wrong On DOMA
Mon, 02/28/2011 - 9:09am | posted by Doug Mataconis
During a vist to Iowa, Congressman Ron Paul made a few comments about President Obama’s decision to decline to defend Section Three of the Defense Of Marriage Act on appeal. In the process, the Congressman gets several things alarmingly wrong and takes a position that is, quite honestly, a betrayal of the libertarian principles that he claims to hold.
“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.
Paul’s press release completely ignores the fact that there are two parts to DOMA, and that only one of them is before the Courts at this time.
Section Two of DOMA provides that no state will be required to recognize a same-sex marriage from another state. That provision is arguably Constitutional under the provision of the Full Faith And Credit Clause which allows Congress to “by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” This is the provision that Paul seems to be referring to in his statement. The only problem is that this part of DOMA is not part of either of the appeals currently pending in the 2nd and 3rd Circuits, and is not the subject of any current Federal lawsuit as far as I’ve been able to determine. Even if the end result of the pending appeals is that DOMA loses, this provision would still remain good law. Therefore, the majority of Paul’s argument against the President’s decision is irrelevant because he’s arguing about the wrong subject.
The only portion of DOMA that is before the Courts is Section Three, which provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
What this means is that a same-sex couple that is validly married under the laws of any one of the many states that have legalized same-sex marriage is not entitled to any of the benefits under Federal Law that are available to every other legally married couple in the country. This ranges from the tax benefits that the Tax Code provides married couples who file jointly, to Social Security survivor benefits, to the benefits provided to spouses of current and former members of the military (an issue likely to come to the forefront now that Don’t Ask, Don’t Tell has been repealed).
In his letter to Speaker Boehner, Attorney General Holder argues that there is no legitimate legal basis for the Federal Government to discriminate against legally married gay couples:
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.
(…)
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
Now, if Paul supports Section Three of DOMA then he essentially believes that it is okay for the government to discriminate against homosexuals just because they are homosexuals. That is not a libertarian position in any sense of the word, and it’s disappointing to see the Congressman make it.
The reality, of course, is that all of DOMA is unconstitutional, including Section Two’s Full Faith And Credit provisions. This is an opinion shared by 2008 Libertarian Party Presidential Candidate Bob Barr, who introduced the Act when he was a Member of Congress in the 1990s:
I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.
In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.
Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.
In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.
Additionally, Section Two violates fundamental individual rights because it tells gay couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized. At this point, that accounts for less than 25% of the states. It means a couple married in Iowa cannot move to any state in the American south without giving up all of their legal rights. It means that a gay couple legally married in Vermont better hope that one of them doesn’t get sick when they visit Virginia, because they might not be able to make medical decisions for their spouse. This is exactly the kind of thing that the Full Faith And Credit Clause was designed to prevent. In fact, under current law, a marriage between a man and a woman that may not be legal in one state — such as a marriage between first cousins — will still be recognized as legal since it was legal under the laws of the state in which it took place. There is no rational reason why the individual liberty of gays and lesbians should be restricted in this manner.
I’ve supported Congressman Paul in the past, but on this one he is profoundly, and tragically, wrong.
Same Sex activity is an activity first and foremost. The government has the constitutional right to discriminate against any activity it chooses; just like it does with alcohol and drug use, prostitution, murder, rape, and theft…
Sexual perversion is not even an implied right; much less a stated right as is the case with the right of conscience and free exercise there-of as enshrined in the 1st Amendment of the U.S. constitution.
In Loving v. Virginia SCOTUS opined “Marriage is a fundamental right; our very existence and survival is dependant upon it..”
No-body in their right mind could ever argue that “our very existence and survival…” was dependant upon perverts rubbing their reproductive organs against each-other.
R. King, you’re sick and twisted.
Yep, seemingly just another bin Laden type hiding under the guise of the biblical creation deities based upon no reality whatsoever and altered by human hands for hundreds of years. Probably loves war and loves to watch foreigners get blown up overseas to “protect” America.
Actually from a legal staindpoint, this guy is right. His personal bigotry may shine through along with what he’s saying, but he’s not entirely wrong.
The legality of the matter and the morality are in direct opposition as they are with many things. 1 in 6 prison inmates are in there for marijuana related crimes, not to mention the other victimless crimes.
A lot of the existing legislation needs to be destroyed, and by a lot I mean most. I would be so completely for destroying everything and starting from scratch.
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Noticing the amount of unabashed spam that has found its way onto this and certain other pages, it occurs to me that some may have mistaken libertarianism for liberty! Our right to be unique is vital and must be defended, but not at the expense of others!
And yet, the Supreme Court has said you can not legislate against gay sex. The sex is the activity you speak of, not marriage which is a legal and/or religious arrangement that also conveys certain benefits as far as government in concerned.
SCOTUS spoke very clearly regarding the activity that you refer to as perversion. Regardless of your opinion of such acts, or mine, or anyone else’s, it is now unconstitutional to pass laws regulating it. Despite your best efforts, that isn’t likely to change either.
speaking the plain unvarnished truth always seems to piss off certain kinds of people. the old testament prophets often paid dearly for doing this kind of thing.
charles ranalli
albuquerque
Mr. King,
While I appreciate your attempts at bringing a constitutional insight into this, I regret to inform you of a couple of mistakes made in your response.
First and foremost the government clearly has no right to discriminate against any activity it chooses. The Federal government is only allowed to regulate the things that fall under its enumerated powers. The states are allowed to do any of the things that are not denied to them by the constitution. The 10th amendment clarifies this by stating that all powers not delegated to the federal government nor denied to the states shall belong to the states and the people therein. Because marriage is not addressed in the constitution at all(not given to the federal government nor denied to the states) it is necessarily regarded as a state issue.
On your idea about implied/stated rights: the ninth amendment claims that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, just because an inherent right is not defined in our constitution does not make it an invalid right. It works the opposite way. Our government is not a giver of rights, rather it is supposed to be a protector of rights.
While I will agree that nobody’s life actually depends upon marriage, i will also say that your life is unaffected by others who wish to join together in a legal bond whatever that bond may be.
One last thing in closing both the federal government and the states are prohibited from passing any bill of Attainder(a bill that has a negative effect on a single person or group). This prohibition on our government has long been ignored as has most of the constitution. It should go without saying that allowing one group to benefit(tax benefits, social security survival benefits) while denying the same benefits to another group is in fact a bill of attainder( something which is forbiden in the United States Constitution(i.e the people’s contract with the government)).
What surprises me most about your post is that you seem to be reliant on the government to tell you what you are and are not allowed to do. Our country was founded on the basic principle that the government works to defend individual liberties (not to define them).
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Good thing we have sites like yours to report on such things, not everyone is willing to write about DOMA.
TheGateKeeper (Muay Thai | Self Defense Laws)
Good thing we have sites like yours to report on such things, not everyone is willing to write about DOMA.
regards Peter Webmaster of Bauchmuskeltraining
How are we to live our lives together on this small planet as long as we persist in declaring that others are “wrong” when are doing nothing to hurt other people and are simply “different”? Intolerance is in opposition to any meaning of libertarianism and bodes ill for the future of the human race. How much more helpful it would be to support the attempts by people of generous character who would heal the rifts between us and reserve criticism of other races, genders, creeds and religions to those that would do harm to others.
People are getting fed up with the Morality Police and their dehumanizing of gays and lesbians. The science indicates it’s largely genetic. Self-reporting indicates its an inborn trait. It’s not been considered a “perversion” since the 70s! It’s no more an “activity” than being straight is an activity. It’s purely a moral animus against a minority that leads to these anti-gay comments and amendments. And that’s not difficult to prove, just read their comments.
In time the court system will do its job and overturn all of these awful amendments. Marriage has not been damaged at all by gay marriage in states and countries where it is legal. If you want to “save marriage” you should focus on divorce, which harms children. Not to mention it’s forbidden on any grounds in multiple verses in the Bible.
Funny how the Morality Police like to pick and choose which parts of the Bible to take literally?
The legal definition of marriage according to every major law school and Branson legal dictionary is the religious and or state sanctioned union of two persons of OPPOSITE gender, male and female, etc., etc., etc.
You can’t argue the facts. You can’t change the meaning or definition of a word. Marriage is NOT two people of the same sex. That’s like using the definition of water and applying it to milk or soda or what have you. It is what it is. Marriage is the union of one man and on woman.
I’ve never seen Branson dictionary referenced in any of the discussion so far, but I’m open to learning. Can you please provide a link? I’ve googled it but cannot find anything about Branson legal dictionary. I’d like to know if it’s a federal definition or what (obviously in states with gay marriage it doesn’t apply) Thank you
Yes, to love warfare and death and destruction is highly immoral and then to waste time worrying about what two men or two women are doing together in the privacy of their home?? That is truly demented and twisted morality…actually hollow morality.
Bush ordered torture and Obama continues the illegal wars and has an assassination list with U.S. citizen’s names on it. Get real morality and war mongers.
@ justanothercrusader
Well said!!! These anti-gay protesters should check their own morals before criticizing anyone elses.
Survival depends on procreation (sex) not marriage! What a foolish comment made by RKing… as if gays are perverts. Shows you the true “moral fiber” of many ignorant and prejudiced children in this nation.
“the govt has the right to regulate any activity.” how idiotically un-American! the govt is not your mommy and daddy. grow up and be responsible for your own actions!!
Let’s look at it in terms of political agendas.
This garbage is getting thrown out as a scrap for all the morons in this country to pounce on and fight over while we’re robbed blind, and our real rights are trampled.
Who cares about gays or nitpicking the laws that get handed down by this criminal enterprise called the federal government?
You people are being played for suckers, so to speak.
Wars. Manipulation of money and credit. Government spying and violation of basic human rights….Focus on real problems and look for real solutions.
The feds should not be in marriage at all. The libertarian position should be for the cause of individual liberties not state liberties. Ron Paul has always been wrong on that and abortion rights. No secrete there he has always followed those exceptions.
Additionally, Section Two violates fundamental individual rights because it tells gay couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized.
Section 2 actually makes it illegal for “gay couples” living in a state that allows same-sex marriage to move to a state that doesn’t? I’d need to see a cite for that.
was thinking the same thing lol.
George,
If a gay couple legally married under the laws of the state of, to pick just one, Iowa decides to move to Virginia (where gay marriage is barred by Constitutional Amendment, as are any legal arrangements between homosexuals meant to resemble marriage and state law provides that same-sex marriages from other states will not be considered valid under Virginia law) then they will lose their status as legally married in their new home states, along with the legal rights that pertain to that status.
Leave it to the Tea Baggers to point out the most unimportant issue on the table. this issue should be a personal freedom.. bottom line.. Who Fing cares what religious nuts think.. they will bring the end to this great country with their false phrophets.. I’m a Ron Paul supporter but the Tea Party has been highjacked by bandwagon republicans.. yes that is a fact … if you don’t believe it then you are a blind idiot… Really Sarah Palin, Fox news… they hated Ron Paul … now they are sucking his %$&% .. F the republican party
The way many opponents of same-sex marriage talk, you’d think that the issue is not making such marriages permissible, but _mandatory_.
Survival of the species is not at risk if we permit a small portion of the population (gay men and lesbians) to form families with all of the responsibilities that that entails.
For those who oppose same-sex marriage, the best course of action is: don’t marry someone of the same sex. You are free to marry a person of the opposite sex, and that won’t change when gay people are accorded freedom to marry.
beautifully put sir
I’ll defer to the wisdom of Dr. Paul on this one.
Yea. I’ll trust the Judicial branch, which has already ruled this one unconstitutional a couple of times now.
This stops federal intervention in state affairs. You can’t get more libertarian than that. Your own opinion on marriage is irrelevant to the federal control of marriage. You can’t have it both ways.
I abhor the same sex marriage “issue”. It is only a rallying cry, deliberately dividing people who would otherwise agree to disagree and be civil. Instead, both parties try to disturb their followers to the point where they incite hatred and violence towards one another. They nationalize the issue instead of letting the states write their own laws about it. It is 100% a non-issue with no bearing on what’s seriously wrong with this country. What good is a country that allows or disallows gay marriage if it goes broke anyways?
Promiscuity is a much bigger and more damaging issue than same sex marriage, but it seems nobody feels like anything should be done about it.
Good point about promiscuity: out-of-wedlock births and single parent households are on the rise.
paul did not know that congress was denying a section of DOMA. He thought they would get rid of the whole section 3. DOMA is not unconstitutional. Section 2 only states that states that do not have/allow gay marriage can’t be MARRIED THERE. Gay couples can live in any state they want.
the third act is defining what marriage is. Give me proof/cites that gays living in the state that allows gay marriage can not recieve the same benefits in that state?
Anonymous,
DOMA Section Two says:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Would either Ron Paul or Bob Barr please answer this question: If a state retains the right to define marriage as a contract between a man and a woman, is it OK for the state to define it as a contract between a man and a woman of the same race? (just like in the good old days in the South)
I’m beginning to weary of RP. He doesn’t believe in evolution, either.
The moral nitwits actually have no morality because they love war and they love torture and they love bombing foreigners. The moralizers are a complete shame on this nation because they only care about a TINY sliver of morality and worship warfare and destruction abroad in the name of the fake “war on terror”. The Pentagon admits there are less than 100 Al-CIAda in all of Afghanistan, so grow up and wake up.
Wow less than 100 huh, so were doing way more than we (Americans) need to it seems. You know a site where I could find that statement about them admitting there is less than 100 Al Qaeda?
Perhaps Dr. Paul believes that the central government shouldn’t discriminate against married people for the purpose of advancing the radical militant agenda of homosexuals.
Please cite how I, a married heterosexual, would be discriminated against because two men or two women are able to get married?
No where in the excerpt from Ron Paul’s speech did he say that he defended Section III. He defended the Defense of Marriage Act and is trying to remove the challenges of the acts that allow for gay marriages to occur. Don’t be decieved by the way the article is written, your opinion is what matters more than the authors.
I’m for gay marriage, but as always Ron Paul is right on this. The executive branch doesn’t have the power to just not enforce a law. Just like they don’t have the power to use troops unless there is an eminent and immediate threat. But both of these things the white house has been doing for a long time. The Federal Government doesn’t care about the constitution anymore. The state is the one that have the power to legislate where the Fed’s power ends. Ron Paul got it right, he knows the constitution better than Doug Mataconis does any day. Doug doesn’t exactly sound like he knows what he’s talking about.
Here’s a simple, libertarian solution: Make it so that the government refer to all current marriages as unions and make it so that all future marriages be referred to as unions, along with gay unions. Also, all the unions would need to be treated equally by the government
The people, not the government will then decide whether or not they will consider their union, or someone else’s, a marriage.
That’s not a libertarian solution at all. The libertarian solution is to not have the government refer to marriage at all. Leave the government to protecting private property, let the private industry define what and who they wish to marry. The state is closer to it’s people than the Fed is, so leaving it to state level would be a start.
I’m a Ron Paul supporter, and he s wrong on this issue. There’s a simple fix, really. All the folks against gay marriage are predominately against it because the believe marriage to be a religious institution, right?
Ban state sanctioned marriage and ONLY grant civil unions to straight and gay couples. You allow equal representation under the law and it still allows for churches and religious organizations to honor your marriage with a religious ceremony if you like.
Government offers equal protection, politicians can no longer use it as a wedge issue, and we can begin to focus on things that actually, you know, matter.
Oh yes, Doug and the rest of the libertarians are right. Morality exists in a vacuum. What we need to do now is not discriminate against homosexuals, men that marry cattle and horses and sheep, and a marriage between a 35 year old and a 13 year old.
Yes, as always, even the libertarians fail to grasp the question the Constitution’s division of power. This is a state issue and Ron Paul is right.
[Emphasis mine]
Right, because what two consenting adults enter into is the exact same thing as a man marrying a girl who is below the age where she is capable of consenting. Those are absolutely equivalent. [/sarcasm]
Paul is a disappointment on this issue. Gary Johnson defends civil unions in his campaign platform: http://ouramericainitiative.com/issues/civil-liberties
I no longer support Ron Paul. He has shown colors I never expected to see from someone of his stature. This is a big issue since I am a gay man who wants to get married. I supported him for a while and I think he should have kept his mouth shut on social issues. That’s how you know a politician is about to sell-out, they start yaking about social issues to minimize their softening on fiscal policy. I look in the near future for you to see him laxing on his anti-fed talk. I don’t support Gary Johnson either. From here-on-out it’s simply Libertarian for me. Screw anyone that doesn’t like it.
I agree very much with your comment. I expect that this has happened just because he was advised to drop a policy that might lead to less votes. But since he has (to be quite frank) almost no chance whatsoever of being elected, it is obviously better for him to concentrate on being an honest human being than on garnering votes that will anyhow prove irrelevant.
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