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.