Tag archives: Defense of Marriage Act

The Pentagon’s Gift: DoD Now Has Money for Homosexual Honeymoons

by Peter Sprigg

August 15, 2013

A report by the Associated Press a few days ago quoted an unnamed Defense Department source as saying that “we are looking at providing extra leave for same-sex couples who want to get married to travel to a state where same-sex marriages are legal.”

This report has now been confirmed with the release of two Pentagon memos (including one from Defense Secretary Chuck Hagel) issued yesterday. The second memo, from Jessica L. Wright, Acting Under Secretary of Defense for Personnel and Readiness, clarifies some of the details of the newly revised “Leave and Liberty Policy and Procedures.”

The AP report said same-sex couples would be offered “up to 10 days of leave” for a wedding. The actual memo says that Service members assigned within in the Continental United States may be granted up to 7 days of leave. Only those assigned outside the Continental U.S. are eligible for up to 10 days. This special leave is “non-chargeable,” meaning that it will not be charged to the normal leave granted to all Service members.

However, it is also only available to those “assigned to duty stations located more than 100 miles from a U.S. state (or the District of Columbia) that allows same-sex couples to marry.” So, no seven days’ leave just to cross the Potomac from the Pentagon to DC for a wedding.

Two things should be noted. This policy goes well beyond anything that is required by the U.S. Supreme Court’s decision in June striking down the provision of the 1996 Defense of Marriage Act (DOMA) which defined marriage under federal law only as the union of a man and a woman. A plain reading of the decision in U.S. v. Windsor suggests that the federal government is now only required to recognize same-sex couples as “married” when they reside in a state which also recognizes them as legally “married.” The requirement does not extend to couples whose marriage is not recognized by their state of residence, and Windsor certainly does not require that military personnel be granted extra leave for their destination weddings.

Furthermore, it could well be argued that the new policy actively discriminates against opposite-sex couples—who receive no special leave for their weddings.

Naming the Defense of Marriage Act

by Robert Morrison

July 1, 2013

My hero Amherst Professor Hadley Arkes has provided a powerful analysis of the Supreme Court’s latest exercise in raw judicial power. Hadley gave strong testimony for the Defense of Marriage Act when it came before the Congress in 1996. He approvingly cites Justice Antonin Scalia’s dissent.

Proponents of the Defense of Marriage Act are no more moved by animus against homosexuals than adherents of the U.S. Constitution are moved by hatred of other countries’ constitutions, argues Justice Scalia. He’s right. I can smile on the British monarchy, for example, while resolutely forswearing all allegiance to any foreign prince or potentate.

I had the honor of working as a policy analyst at Family Research Council in 1996 when the Defense of Marriage Act was being drafted and shepherded through Congress. My role was quite limited. Senior Analyst Bob Knight led the effort within our office. Sen. Don Nickles (R-Okla.) was our chief sponsor.

A technical question came to FRC from the Hill. Our good friends on Sen. Nickles’s staff asked us if we might agree to re-naming the draft legislation “the Definition of Marriage Act”?

I was adamant. NO. The reason was that the name of the law must educate Americans and contain the rationale for the law. Americans needed to know that marriage itself is under assault. American citizens needed to know that those in Congress who voted against the Defense of Marriage Act were actually voting against the institution of marriage.

Serving in the Reagan administration, I had learned valuable lessons from our leader. He would regularly defend the right to life of unborn children in his State of the Union Addresses. He knew that millions of Americans who paid little attention to politics would be watching this one night of the year. So President Reagan would describe abortion as “a wound in the soul of America.”

The news media sneered. Their cameras panned the grim-faced, black-robed Justices of the Supreme Court. They showed the jowly images of Ted Kennedy and Chris Dodd and the ever-grinning Joe Biden. Few of the Justices and none of those senators would extend any mercy to unborn children. But President Reagan spoke over their heads, to the hearts of the American people.

We have never had a president since who would defend marriage that way. It was my earnest hope that the name of the law would help Americans understand that their own cherished institution of marriage was in danger.

Why should marriage itself be in danger? Rep. Barney Frank (D-Mass.) was as offended by the title of the law as most liberals. He despised the Defense of Marriage Act. “I don’t understand how your marriage is affected if I marry Herb Moses,” he challenged Bob Knight on camera.

The answer was provided by Hollywood star years ago. Mae West was a woman so famously endowed that her name was given to sailors’ life jackets in World War II. She said: “Marriage is a great institution. I’m just not ready for an institution.” Mae West understood marriage better than Barney Frank did.

Marriage is not only your marriage and my marriage. It is a social institution. It has been part of the natural order of human beings for the care and protection of children. Marriage as an institution needs protection.

As Hadley points out in his column for the website Right Reason, there is now no principled basis for authorities to say he cannot marry his sons. Far-fetched? Men marrying men and women marrying women was far-fetched in 1980, 1990.

Boosted by challenges to true marriage in the 1990s, FRC worked hard to gain passage of the Defense of Marriage Act. So broad was the support for this measure that we could have passed it in Congress without a single Republican vote. The bill passed the House of Representatives 342-67 and the Senate 85-14. President Clinton saw we had the votes to override his veto in both houses.

Clinton’s press spokesman snarled that the bill was “mean spirited,” but his boss nonetheless signed the Defense of Marriage Act into law. And then, in that election year, he shamelessly took out ads on Christian radio stations bragging that he had signed it.

Still, we had the Defense of Marriage Act in law. And with that law, FRC helped in thirty-two states where marriage was being threatened. We joined in a broad coalition and had a string of successes until 2012. Just last year, in four liberal states, the Democratic Party machine fully engaged to re-elect President Obama and to overturn true marriage.

Marriage is in danger from academics and activists. GWU Law Professor Jonathan Turley told an overflow crowd at the Newseum in 2008 that opponents of his idea of same-sex couplings say it will lead to polygamy. “Well, I’m for that!” For his boldness, Turley was rapturously applauded by the liberal audience of federal law clerks, congressional staffers, journalists, and graduate students.

Every argument for same-sex couplings is an argument for polygamy. And what if the two men who seek to marry are brothers? Twin brothers announced on TV talk show that they were homosexual. May they marry? If not, why not?

President Obama has given a key appointment to Georgetown University Professor Chai Feldblum. She famously argues that any clash between religious freedom, which is protected by the Constitution, and her demands for homosexual rights must be resolved in favor of the homosexual position.

She helped draft the radical statement “Beyond Marriage” (www.beyondmarriage.org) This document argues that any number of adults may contract to raise any number of children.

That, of course, spells the end of marriage in America. It’s what they want. It’s what they demand. It’s why we passed the Defense of Marriage Act.

FRC in the News: June 17, 2013

by Karah Kruger

June 17, 2013

Anna Higgins Comments on the Obama Administrations’ Prioritization of Politics over Children

Anna Higgins, FRC’s Director for Human Dignity, was quoted in The Washington Times about the Obama administration abandoning a recent lawsuit that would have stopped the over-the-counter distribution of the abortifacient “Plan B” to girls of any age. Higgins stated:

It’s “a clear example of the administration’s willingness to put politics ahead of the health and safety of little girls. We’re disappointed that this administration has once again sided with its political allies and ignored the safety of girls and the rights of parents.”

The Obama Administration to Make Sure Same-Sex Couples Have Access to All Federal Benefits, Regardless of State Borders

Chris Gacek, FRC’s Senior Fellow of Regulatory Policy, was quoted in The New York Times about same-sex couples receiving benefits on the federal level, if DOMA is overturned, depends on if they reside in a state that currently does or does not allow same-sex marriage. Gacek said the following:

We certainly wouldn’t go for imposing gay marriage on the country administratively,” Mr. Gacek said.

He continued, “Once you open up this can of worms, there are a lot of issues here.”

The Supreme Court Decides to Place a Ban on Patenting Human Genes

David Prentice, FRC’s Senior Fellow and Director of Life Science, was quoted in The Washington Times about the Supreme Court decision to ban the patenting of human genes. Family Research Council also determined the 9-0 ruling as an important legal decision. Prentice made the following statement:

That the patent office approved patents on our genes is a profoundly disturbing idea, as is the idea that someone else can own parts of your body, especially your genetics.”

Defining Marriage—What Harm Would It Do to Redefine Marriage?

by Peter Sprigg

March 25, 2013

On March 26 and 27, the U.S. Supreme Court will hear oral arguments in two cases challenging the definition of marriage as the union of one man and one woman. In Hollingsworth v. Perry, they will consider the constitutionality of the definition as enshrined in the California state constitution by voters in that state when they adopted “Proposition 8” in 2008 (effectively reversing the decision of the California Supreme Court to impose same-sex “marriage” earlier that year). In Windsor v. United States, they will consider the constitutionality of the same definition of marriage being adopted for all purposes under federal law through the 1996 Defense of Marriage Act (DOMA).

In anticipation of those oral arguments, I am running a series of blog posts with questions and answers related to the issue. Today I look at what is perhaps at the crux of the debate—the question of what harm marriage redefinition would do.

Q—What harm would it do to the institution of marriage if we redefine it to include same-sex couples?

At the outset, it is worth noting that this question is often framed in a rather misleading way: “What harm would a same-sex couple getting married do to your opposite-sex marriage?” The issue, however, is not how any one couple’s marriage would affect any other specific couple’s marriage—the issue is how changing the definition of marriage under the law would change the social institution of marriage.

Giving unique privileges and a unique status to the only type of relationship that can ever result in the natural creation of another human being sends an important message to society. Contrary to the charges of those who would redefine marriage, that message has nothing to do with “sexual orientation” as such. It simply sends the message that relationships of a type which can result in natural reproduction are unique, and are uniquely valuable to society; and it further sends the message that children benefit uniquely from being raised by their own mother and father (as well as the message that a man and woman should take responsibility for children produced by their union).

If “marriage” is redefined to include same-sex couples, it will of course not abolish civil marriage as an institution, or prevent opposite-sex couples from marrying and having children. However, it will effectively negate—and indeed, reverse—the social message that privileging “marriage” over other relationships would send.

Instead of sending the message that potentially procreative relationships are uniquely valuable and that children being raised by their mother and father is uniquely valuable, the message to society will be the exact opposite. Since same-sex relationships, which are intrinsically infertile and can never result in natural procreation, would be treated as identical under the law to opposite-sex relationships which are the only type that can ever result in natural procreation, the explicit message to society would be that there is nothing uniquely valuable about the very reproduction of the human race. This would be a shocking denial of a reality that is literally fundamental to human existence.

By the same token, same-sex couples never provide a child with a home that includes the care of both their mother and father, and on the contrary deliberately and permanently deny a child such a home. Treating such couples—which are deliberately motherless or fatherless—in a way identical to couples that provide both a mother and father would send the message to society that there is nothing uniquely valuable about a child being raised by his or her own mother and father.

Sending these messages—officially denying, as a matter of public policy, the unique value and importance of reproduction, and of mothers and fathers—would inevitably have an impact on the behavior of people in society.

The following harms would be the predictable results (these are adapted and updated from my 2010 Family Research Council booklet, The Top Ten Harms of Same-Sex “Marriage):

  • Fewer children would be raised by a married mother and father.

The greatest tragedy resulting from the legalization of homosexual marriage would not be its effect on adults, but its effect on children. For the first time in history, society would be placing its highest stamp of official government approval on the deliberate creation of permanently motherless or fatherless households for children.

There simply cannot be any serious debate, based on the mass of scholarly literature available to us, about the ideal family form for children. It consists of a mother and father who are committed to one another in marriage. Children raised by their married mother and father experience lower rates of many social pathologies, including:

  • premarital childbearing;[i]
  • illicit drug use;[ii]
  • arrest;[iii]
  • health, emotional, or behavioral problems;[iv]
  • poverty;[v]
  • or school failure or expulsion.[vi]

These benefits are then passed on to future generations as well, because children raised by their married mother and father are themselves less likely to cohabit or to divorce as adults.[vii]

In a perfect world, every child would have that kind of household provided by his or her own loving and capable biological parents (and every husband and wife who wanted children would be able to conceive them together). Of course, we don’t live in a perfect world.

But the parent who says, “I’m gay” is telling his or her child that he or she has no intention of providing a parent of both sexes for that child. And a homosexual who “marries” someone of the same sex is declaring that this deprivation is to be permanent—and with the blessing of the state.

Homosexual activists argue that research on homosexual parenting has shown no differences among the children raised by homosexuals and those raised by heterosexuals. Even leading professional organizations such as the AmericanAcademyof Pediatrics, under the influence of homosexual activists, have issued policy statements making such claims.[viii]

A close examination of the actual research, however, shows that such claims are unsupportable. The truth is that most research on “homosexual parents” thus far has been marred by serious methodological problems.[ix] However, even pro-homosexual sociologists Judith Stacey and Timothy Biblarz report that the actual data from key studies show the “no differences” claim to be false.

Surveying the research (primarily regarding lesbians) in an American Sociological Review article in 2001, they found that:

  • Children of lesbians are less likely to conform to traditional gender norms.
  • Children of lesbians are more likely to engage in homosexual behavior.
  • Daughters of lesbians are “more sexually adventurous and less chaste.”
  • Lesbian “co-parent relationships” are more likely to break up than heterosexual marriages.[x]

The most comprehensive study of children raised by parents who had homosexual relationships, conducted by University of Texas sociologist Mark Regnerus and published in 2012, showed that such children suffered numerous disadvantages—relative to children raised in an “intact biological family,” but also in comparison to other family forms.[xi]

Critics of the Regnerus study questioned its relevance to the marriage debate, because some of the children of homosexual parents never lived with that parent and a partner, and almost none were raised by a same-sex couple from birth. (This illustrates, in part, how rare such “stable” same-sex households are in the real world). However, a 1996 study by an Australian sociologist compared children raised by heterosexual married couples, heterosexual cohabiting couples, and homosexual cohabiting couples. It found that the children of heterosexual married couples did the best, and children of homosexual couples the worst, in nine of the thirteen academic and social categories measured.[xii]

As scholar Stanley Kurtz says,

If, as in Norway, gay marriage were imposed here by a socially liberal cultural elite, it would likely speed us on the way toward the classic Nordic pattern of less frequent marriage, more frequent out-of-wedlock birth, and skyrocketing family dissolution. In the American context, this would be a disaster.[xiii]

  • More children would grow up fatherless.

This harm is closely related to the previous one, but worth noting separately. As more children grow up without a married mother and father, they will be deprived of the tangible and intangible benefits and security that come from that family structure. However, most of those who live with only one biological parent will live with their mothers. In the general population, 79% of single-parent households are headed by the mother, compared to only 10% which are headed by the father.[xiv] Among homosexual couples, as identified in the 2000 census, 34% of lesbian couples have children living at home, while only 22% of male couples were raising children.[xv] The encouragement of homosexual relationships that is intrinsic in legalization of same-sex “marriage” would thus result in an increase in the number of children who suffer a specific set of negative consequences that are clearly associated with fatherlessness.

Homosexual activists say that having both a mother and a father simply doesn’t matter—it’s having two loving parents that counts. But social science research simply does not support this claim. Dr. Kyle Pruett of YaleMedicalSchool, for example, has demonstrated in his book Fatherneed that fathers contribute to parenting in ways that mothers do not. Pruett declares, “From deep within their biological and psychological being, children need to connect to fathers … to live life whole.”[xvi]

Children—both sons and daughters—suffer without a father in their lives. The body of evidence supporting this conclusion is large and growing.[xvii] For example, research has shown that “youth incarceration risks in a national male cohort were elevated for adolescents in father-absent households,” even after controlling for other factors.[xviii] Among daughters, “father absence was strongly associated with elevated risk for early sexual activity and adolescent pregnancy.”[xix] Even researchers supportive of homosexual parenting have had to admit that “children raised in fatherless families from infancy,” while closer to their mothers, “perceived themselves to be less cognitively and physically competent than their peers from father-present families.”[xx]

President Obama has also acknowledged the importance of fathers. In a speech during his 2008 campaign for President, he said this:

We know the statistics - that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home, or become teenage parents themselves. And the foundations of our community are weaker because of it.”[xxi]

Some lesbian couples are deliberately creating new children in order to raise them fatherless from birth. It is quite striking to read, for example, the model “Donor Agreement” for sperm donors offered on the Human Rights Campaign website, and to see the lengths to which they will go to legally insure that the actual biological father of plays no role in the life of a lesbian mother’s child.[xxii] Yet a recent study of children conceived through sperm donation found, “Donor offspring are significantly more likely than those raised by their biological parents to struggle with serious, negative outcomes such as delinquency, substance abuse, and depression, even when controlling for socio-economic and other factors.” [xxiii] Remarkably, 38% of donor offspring born to lesbian couples in the study agreed that “it is wrong deliberately to conceive a fatherless child.”[xxiv]

  • Birth rates would fall.

One of the most fundamental tasks of any society is to reproduce itself. That is why virtually every human society up until the present day has given a privileged social status to male-female sexual relationships—the only type capable of resulting in natural procreation. This privileged social status is what we call “marriage.”

Extending the benefits and status of “marriage” to couples who are intrinsically incapable of natural procreation (i.e., two men or two women) would dramatically change the social meaning of the institution It would become impossible to argue that “marriage” is about encouraging the formation of life-long, potentially procreative (i.e., opposite-sex) relationships. The likely long-term result would be that fewer such relationships would be formed, fewer such couples would choose to procreate, and fewer babies would be born.

There is already evidence of at least a correlation between low birth rates and the legalization of same-sex “marriage.” At this writing [from March 2011 publication—update pending], five U.S. states granted marriage licenses to same-sex couples. As of 2007, four of those five states ranked within the bottom eight out of all fifty states in both birth rate (measured in relation to the total population) and fertility rate (measured in relation to the population of women of childbearing age).[xxv]

Even granting marriage-related benefits to same-sex couples is associated with low birth and fertility rates. As of March 2011 there were sixteen states which offered at least some recognition or benefits to same-sex relationships.[xxvi] Twelve of these sixteen states ranked in the bottom twenty states in birth rate, while eleven of them ranked in the bottom seventeen in fertility rate. Vermont, the first state in the U. S. to offer 100% of the rights and benefits of marriage to same-sex couples through passage of its “civil unions” law in 2000[xxvii], ranked dead last in both birth rate and fertility rate.[xxviii]

Similar data are available on the international level. In March 2011 there were ten countries which permitted same-sex “marriage.”[xxix] Six of these ten fell well within the bottom quarter in both birth rates and fertility rates among 223 countries and territories. All ten fell below the total world fertility rate, while only South Africa had a birth rate that was higher (barely) than the world rate.[xxx]

It could be argued that the widespread availability and use of artificial birth control, together with other social trends, has already weakened the perceived link between marriage and procreation and led to a decline in birth rates. These changes may have helped clear a path for same-sex “marriage,” rather than the reverse.[xxxi] Nevertheless, legalization of same-sex “marriage” would reinforce a declining emphasis on procreation as a key purpose of marriage—resulting in lower birth rates than if it had not been legalized.

Of course, there are some who are still locked in the alarmism of the 1960’s over warnings of over-population.[xxxii] However, in recent years it has become clear, particularly in the developed world, that declining birth rates now pose a much greater threat. Declining birth rates lead to an aging population, and demographers have warned of the consequences,

… from the potentially devastating effects on an unprepared welfare state to shortages of blood for transfusions. Pension provisions will be stretched to the limit. The traditional model of the working young paying for the retired old will not work if the latter group is twice the size of the former… . In addition, … healthcare costs will rise.[xxxiii]

The contribution of same-sex “marriage” to declining birth rates would clearly lead to significant harm for society.



[i] Kristin A. Moore, “Nonmarital School-Age Motherhood: Family, Individual, and School Characteristics,” Journal of Adolescent Research 13, October 1998: 433-457.

[ii] John P. Hoffman and Robert A. Johnson, “A National Portrait of Family Structure and Adolescent Drug Use,” Journal of Marriage and the Family 60, August 1998: 633-645.

[iii] Chris Coughlin and Samuel Vucinich, “Family Experience in Preadolescence and the Development of Male Delinquency,” Journal of Marriage and the Family 58, May 1996: 491-501.

[iv] Debra L. Blackwell, “Family structure and children’s health in the United States: Findings from the National Health Interview Survey, 2001–2007,” Vital and Health Statistics, Series 10, No. 246 (Hyattsville, MD: National Center for Health Statistics, December 2010). Online at: http://www.cdc.gov/nchs/data/series/sr_10/sr10_246.pdf

[v] Federal Interagency Forum on Child and Family Statistics, America’s Children: Key Indicators of Well-Being 2001,Washington,D.C., p. 14.

[vi] Deborah A. Dawson, “Family Structure and Children’s Health and Well-Being: Data from the 1988 National Health Interview Survey on Child Health,” Journal of Marriage and the Family 53, August 1991: 573-584.

[vii] Paul R. Amato and Alan Booth, A Generation at Risk: Growing Up in an Era of Family Upheaval, Cambridge,Massachusetts:HarvardUniversity Press, 1997, pp. 111-115.

[viii] Committee on Psychosocial Aspects of Child and Family Health, American Academy of Pediatrics, “Policy Statement: Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian,” Pediatrics Vol. 31, No. 4, April 2013, pp. 827-830 (Reaffirmed May 2009; online at: http://pediatrics.aappublications.org/content/early/2013/03/18/peds.2013-0376.full.pdf+html

[ix] Loren Marks, “Same-sex parenting and children’s outcomes: A closer examination of the American Psychological Association’s brief on lesbian and gay parenting,” Social Science Research Vol 41, Issue 4 (July 2012), pp. 735-751; online at: http://www.sciencedirect.com/science/article/pii/S0049089X12000580

[x] Judith Stacey and Timothy J. Biblarz, “(How) Does the Sexual Orientation of Parents Matter,” American Sociological Review 66 (2001), pp. 159-183.

[xi] Mark Regnerus, “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study,” Social Science Research Vol 41, Issue 4 (July 2012), pp. 752-770; online at: http://www.sciencedirect.com/science/article/pii/S0049089X12000610

[xii] Sotirios Sarantakos, “Children in three contexts: Family, education and social development,” Children Australia 21, No. 3 (1996): 23-31.

[xiii] Stanley Kurtz, “The End of Marriage in Scandinavia: The ‘conservative case’ for same-sex marriage collapses,” The Weekly Standard 9, No. 20 (February 2, 2004): 26-33.

[xiv] Rose M. Kreider, “Living Arrangements of Children: 2004,” Current Population Reports P70-114 (Washington, DC: U.S. Census Bureau), February 2008, Figure 1, p. 5.

[xv] Simmons and O’Connell, op. cit., Table 4, p. 9.

[xvi] Kyle D. Pruett, Fatherneed: Why Father Care is as Essential as Mother Care for Your Child (New York: The Free Press, 2000), p. 16.

[xvii] A good recent summary is Paul C. Vitz, The Importance of Fathers: Evidence and Theory from Social Science (Arlington,VA: Institute for the Psychological Sciences, June 2010); online at:

http://www.profam.org/docs/thc.vitz.1006.htm

[xviii] Cynthia C. Harper and Sara S. McLanahan, “Father Absence and Youth Incarceration,” Journal of Research on Adolescence 14(3), 2004, p. 388.

[xix] Bruce J. Ellis, John E. Bates, Kenneth A. Dodge, David M. Fergusson, L. John Horwood, Gregory S. Pettit, Lianne Woodward, “Does Father Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage Pregnancy?” Child Development Vol. 74, Issue 3, May 2003; abstract online at:

http://onlinelibrary.wiley.com/doi/10.1111/1467-8624.00569/abstract.

[xx] Susan Golombok, Fiona Tasker, Clare Murray, “Children Raised in Fatherless Families from Infancy: Family Relationships and the Socioemotional Development of Children of Lesbian and Single Heterosexual Mothers,” Journal of Child Psychologyc and Psychiatry Vol. 38, Issue 7 (October 1997); abstract online at: http://onlinelibrary.wiley.com/doi/10.1111/j.1469-7610.1997.tb01596.x/abstract.

[xxi] “Obama’s Speech on Fatherhood,”June 15, 2008; online at:

http://www.realclearpolitics.com/articles/2008/06/obamas_speech_on_fatherhood.html

[xxii] Human Rights Campaign, Donor Agreement; online at:

http://www.hrc.org/Template.cfm?Section=Search_the_Law_Database&Template=/ContentManagement/ContentDisplay.cfm&ContentID=18669

[xxiii] Elizabeth Marquardt, Norval D. Glenn, and Karen Clark, My Daddy’s Name is Donor: A New Study of Young Adults Conceived Through Sperm Donation (New York: Institute for American Values, 2010) p. 9.

[xxiv] Ibid., Table 2, p. 110.

[xxv] Joyce A. Martin, Brady E. Hamilton, Paul D. Sutton, Stephanie J. Ventura, T. J. Mathews, Sharon Kirmeyer, and Michelle J. K. Osterman, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, National Vital Statistics System, “Births: Final Data for 2007,” National Vital Statistics Reports Vol. 58, No. 24, August, 2010, Table 11. Rankings calculated by the author.

[xxvi] Human Rights Campaign, “Marriage Equality and Other Relationship Recognition Laws,” April 2, 2010; online at: http://www.hrc.org/documents/Relationship_Recognition_Laws_Map.pdf

[xxvii] “An Act Relating to Civil Unions,” H. 847, adoptedApril 26, 2000. Online at:

http://www.leg.state.vt.us/docs/2000/bills/passed/h-847.htm

[xxviii] Martin et al., op. cit.

[xxix] The Netherlands, Spain, Canada, Belgium, South Africa, Norway, Sweden, Portugal, Iceland, and Argentina. See Dan Fastenberg, “A Brief History of International Gay Marriage,” Time, July 22, 2010; http://www.time.com/time/world/article/0,8599,2005678,00.html

[xxx] “Country Comparison: Birth Rate,” The World Factbook (Central Intelligence Agency); online at:

https://www.cia.gov/library/publications/the-world-factbook/rankorder/2054rank.html; and “Country Comparison: Total Fertility Rate,” The World Factbook (Central Intelligence Agency); online at:

https://www.cia.gov/library/publications/the-world-factbook/rankorder/2127rank.html?countryName=Burma&countryCode=bm&regionCode=eas#bm

[xxxi] Note, for example, that in 2007, the last year for which final birth rate and fertility rate data are available, only one state (Massachusetts) had legalized same-sex “marriage.”

[xxxii] The most well-known representative being Paul R. Ehrlich, The Population Bomb (New York: Ballantine Books, 1968).

[xxxiii] Jonathan Grant and Stijn Hoorens, “Consequences of a Graying World,” The Christian Science Monitor, June 29, 2007; online at: http://www.csmonitor.com/2007/0629/p09s02-coop.html; see also Jonathan Grant, Stijn Hoorens, Juja Sivadasan, Mirjam van het Loo, Julie DaVanzo, Lauren Hale, Shawna Gibson, William Butz, Low Fertility and Population Ageing: Causes, Consequences, and Policy Options (Santa Monica, Calif.: TheRAND Corporation, 2004).

Bill Clinton on the Road to Damascus?

by Robert Morrison

March 8, 2013

The media is treating former President Bill Clinton’s reversal on marriage as a “road to Damascus” conversion. It gets breathless treatment on AOL (“Bill Clinton’s Stunning Reversal”) They go on to relate that the ex-philanderer-in-chief now condemns the law he signed.

Bill Clinton signed the Defense of Marriage Act in May, 1996. His press secretary, Mike McCurry, sneered that it was a hateful piece of legislation. And the spokesman noted the president signed it in the middle of the night. That was intended, we presume, to indicate a level of disdain with which Bill Clinton regarded the bill he felt compelled to sign.

We didn’t yet know that the middle of the night was Bill Clinton’s most active period. Rather like a hamster running on his wheel.

That fall, running for re-election against former Kansas Sen. Bob Dole (R), the Clinton-Gore campaign took out ads on Christian radio stations bragging that President Clinton had signed the Defense of Marriage Act. This clear act of hypocrisy led to this exchange with the White House press corps:

Q: What about this ad that the DNC apparently took down that was running on Christian stations where the President apparently bragged about — he bragged about the President’s vote against gay and lesbian marriages? You’re not sure about whether you want to brag about what the President did on that?

MR. [Joe] LOCKHART: Well, I think the ad was up for several days and factually stated the President’s opposition to the Defense of Marriage Act.

Q: Is that turning into a problem?

The press corps laughed at that reporter’s rejoinder. So, Clintons’ spokesmen tell the journalists that the campaign ad spoke “factually” about Mr. Clinton’s opposition to the Defense of Marriage Act.

The law he had just signed.

You get the picture. Tell the Christians he signed it and he is proud of it. Tell the reporters he’s opposed to the Defense of Marriage Act.

Laughter.

This is the man who said, under oath, “it depends on what the definition of ‘is’ is.”

I had the honor of working with Family Research Council’s leaders on this issue. Our president, Gary Bauer, and our lead policy analyst, Bob Knight, deserve the high credit of pressing the Defense of Marriage Act (DOMA) through Congress. My role was limited to naming it the Defense of Marriage Act.

When friendly Senate staffers came to FRC and asked if it was OK to re-name the bill the Definition of Marriage Act, I strenuously objected. No, we must educate people when they hear the name of the bill that marriage itself is under attack.

Now, we know why that law was named as it was.

Bill Clinton has no shame.” I didn’t say that. George Stephanopoulos said it. Stephanopoulos was Clinton’s first Communications Director. He should know. He said that’s a great advantage in politics.

Why did Bill Clinton sign the Defense of Marriage Act? We had succeeded in amassing an overwhelming level of support in both Houses of Congress. The Defense of Marriage Act passed by 342-67 in the House of Representatives and by 85-14 in the Senate. We could have passed the Defense of Marriage Act without a single Republican vote in either Chamber.

Bill Clinton looked at that overwhelming support and had to consider this:

If I veto this bill, they can pass it over my veto and make me look weak.”

And then, I won’t be able to brag to Christian voters that I signed it.”

Hmmm.”

Bill Clinton has never before been confused with Paul on the Road to Damascus. Or with any other saint, for that matter. I used to tell my students the difference between Richard Nixon and Bill Clinton.

The former left office in disgrace. The latter entered office in disgrace.

Now, he is even disgracing his former presidency.

Obama Hypocrisy on “Federalizing” Marriage

by Peter Sprigg

February 28, 2013

Press reports indicate that President Obama’s Justice Department will file a brief urging the U.S. Supreme Court to overturn California’s Proposition 8—the state constitutional amendment adopted by California voters in 2008, which defines marriage as the union of one man and one woman.

Most people know that President Obama announced last May, for the first time, “I think same-sex couples should be able to get married.” But at the same time, he repeatedly said that this debate should play out at the “local” (presumably he meant “state”) level, and not be “nationalized” or “federalized.”

So is today’s decision hypocritical? Judge for yourself from the following excerpts from President Obama’s May 9 remarks:

Transcript: Robin Roberts ABC News Interview With President Obama

Obama Announced That He Now Supports Same-Sex Marriage

May 9, 2012

… I’ve been going through an evolution on this issue… . Whether it’s no longer defending the Defense Against Marriage Act, which— tried to federalize— what [has] historically been state law.

 . . .

At a certain point, I’ve just concluded that— for me personally, it is important for me to go ahead and affirm that— I think same-sex couples should be able to get married. Now— I have to tell you that part of my hesitation on this has also been I didn’t want to nationalize the issue. There’s a tendency when I weigh in to think suddenly it becomes political and it becomes polarized.

And what you’re seeing is, I think, states working through this issue— in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.

 . . .

 … [W]hat I’m saying is is that different states are coming to different conclusions. But this debate is taking place— at a local level. And I think the whole country is evolving and changing. And— you know, one of the things that I’d like to see is— that a conversation continue in a respectful way.

I think it’s important to recognize that— folks— who— feel very strongly that marriage should be defined narrowly as— between a man and a woman— many of them are not coming at it from a mean-spirited perspective. They’re coming at it because they care about families.

 . . .

ROBIN ROBERTS: I— I know you were saying— and are saying about it being on the local level and the state level. But as president of theUnited Statesand this is a game changer for many people, to hear the president of theUnited Statesfor the first time say that personally he has no objection to same-sex marriage. Are there some actions that you can take as president? Can you ask your Justice Department to join in the litigation in fighting states that are banning same-sex marriage?

PRESIDENT OBAMA: Well, I— you know, my Justice Department has already— said that it is not gonna defend— the Defense Against Marriage Act. That we consider that a violation of equal protection clause. And I agree with them on that. You know? I helped to prompt that— that move on the part of the Justice Department.

Part of the reason that I thought it was important— to speak to this issue was the fact that— you know, I’ve got an opponent on— on the other side in the upcoming presidential election, who wants to— re-federalize the issue and— institute a constitutional amendment— that would prohibit gay marriage. And, you know, I think it is a mistake to— try to make what has traditionally been a state issue into a national issue.

I think that— you know, the winds of change are happening. They’re not blowin’— with the same force in every state… .

 . . .

I want to emphasize— that— I’ve got a lot of friends— on the other side of this issue. You know, I’m sure they’ll be callin’ me up and— and I respect them. And I understand their perspective, in part, because— their impulse is the right one. Which is they want to— they want to preserve and strengthen families.

And I think they’re concerned about— won’t you see families breaking down… .

 . . .

I’m not gonna be spending most of my time talking about this, because frankly— my job as president right now, my biggest priority is to make sure that— we’re growing the economy, that we’re puttin’ people back to work, that we’re managing the draw down in Afghanistan, effectively. Those are the things that— I’m gonna focus on… .

Federal Agency Admits Violating DOMA in Conducting Survey

by Peter Sprigg

August 12, 2011

Last months Senate hearing on a bill to repeal the federal Defense of Marriage Act (DOMA) featured a clash between Sen. Al Franken (D-MN) and one of the witnesses defending DOMA, Tom Minnery of Focus on the Family.

Minnerys testimony referred to the social science evidence showing children do best when raised by their own mother and father. He referred to one such study in his prepared testimony this way:

In fact, the U.S. Department of Health and Human Services explains in its new and exhaustive report, Family Structure and Childrens Health in the United States: Findings from the National Health Interview Survey, 2001-2007, that children living with their own married biological or adoptive mothers and fathers were generally healthier and happier, had better access to health care, less likely to suffer mild or severe emotional problems, did better in school, were protected from physical, emotional and sexual abuse and almost never live in poverty, compared with children in any other family form.

Franken, however, triumphantly noted that in fact, these superior outcomes were associated with nuclear families, defined as one or more children living with two parents who are married to one another and are each biological or adoptive parents to all children in the family. Since the definition made no mention of the gender of the married parents, he concluded that nuclear families could be headed by married homosexual couples, too.

FRCs Tony Perkins, however, noted in his Washington Update that Franken seemed to be forgetting the very law that the hearing was about:

DOMA says, “In determining the meaning 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.” Since this was a federal study published by a federal agency based on a federal survey conducted by federal (Census Bureau) employees, its definition of married is bound by DOMA.

I had made the same point in a longer op-ed about this study in February.

Just to be sure, however, I sent an email to the Centers for Disease Control and Prevention (CDC), which had published the study. Unfortunately, they confirmed that they had simply ignored the mandate of DOMA with respect to the definition of marriage.

Here, for the record, is the substantive part of their response:

The National Health Interview Survey (NHIS) is conducted under the authority of the National Center for Health Statistics and obtains annual data on various health characteristics (e.g., health status, chronic conditions, disability, access to health care, etc.) of the US noninstitutionalized population. NHIS data are typically obtained via face-to-face computer-assisted interviews using fixed format questions. All NHIS data are based on self reports by respondents who decide for themselves how they wish to answer each question; the interviewer then enters the response on the computer.

Regarding marital status, all household members aged 14 or older are asked if they are now married, widowed, divorced, separated, never married, or living with a partner. NHIS respondents self-identify whether they are currently married, divorced, living with a partner, etc.; they are not asked questions about the type of union (e.g., civil unions, common-law marriages, etc) or date of divorce, whether either the marriage or divorce is legal according to the state they live in, or how long their union has lasted. If NHIS respondents tell us they are married, we accept that response as is. Other than making sure that the data are consistent with the universe (that is, limited to respondents aged 14 or older), no attempt is made by NCHS staff to correct the data. Moreover, the 2001-2007 NHIS did not contain questions that systematically asked about sexual orientation; gay or lesbian respondents, as well as same-sex couples, are contained in the data but are not identified. As a result, the definitions used in sr10_246 (the report on family structure and children’s health) were neutral regarding the gender of parents.

It seems to me that it would be easy enough in the interview process to briefly explain the federal definition of marriage, so that the respondent can reply to the marital status question in a way consistent with the law. Procedures for conducting these interviews should immediately be amended to bring them into conformity with DOMA.

Nevertheless, I will give one round to Franken on this technical point. But the number of nuclear families headed by homosexual couples in this study is likely to be negligible. As Tony Perkins noted in the same Washington Update piece quoted above,

Even if, by chance, the interviewers or authors violated [DOMA], the survey data was collected from 2001 to 2007. During that time (and only from mid-2004 on) there was only one state (Massachusetts) in which homosexual couples could marry.

Furthermore, even married homosexual couples who are raising children are unlikely to fit the definition of a nuclear family. Remember, a nuclear family requires that the married parents are each biological or adoptive parents to all children in the family (emphasis added). Obviously, it is biologically impossible for same-sex partners to each be biological parents of the same children.

Only if a married same-sex couple had jointly adopted all the children in their household would they clearly fit even this studys lawless definition of a nuclear family. However, this is not the most common type of homosexual parenting situation. It is much more common for homosexual parents to bring to their relationships their own biological childrenconceived in previous heterosexual relationships.

Advocates for homosexual parents (and for homosexual marriage) are fond of arguing that children do not need a mom and a dadall they need is two loving parents. But this HHS study, while unfortunately not consistent with federal law in its definition of married parents, still offers no support for that argument.

Households featuring same-sex couples raising children are much more likely to fit one of the other non-nuclear household typesall of which, apart from single-parent families, feature at least two adult caretakers. These include unmarried biological or adoptive, blended, cohabiting, extended, or other families.

All of these family types had outcomes inferior to those of the nuclear family.

House Seeks to Intervene in First Circuit Defense of Marriage Act

by Chris Gacek

May 24, 2011

On Friday, May 20th the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives filed a Motion for Leave to Intervene…. with the U.S. Court of Appeals for the First Circuit in two cases that had challenged the constitutionality of the Defense of Marriage Act (DoMA). For a copy of the filing, go here [PDF]. The lead attorney defending DoMA for the House is Paul Clement, former Solicitor General of the United States.

In its filing, the House states that the Department [of Justice] now refuses to defend the statute from the equal protection and due process challenges to DoMAs constitutionality (pp. 9-10). Thus, unless the House is permitted to intervene in the case, the desire of the House to have a constitutional defense of DoMA offered to the court will not be met. The Court of Appeals will now have to rule on whether it will grant the Houses motion.

Same-Sex Marriage Is Not Legal Under Federal Law. Ever. At Any Time.

by Peter Sprigg

May 17, 2011

Christianity Todays Politics Blog featured an article on May 13 by Tobin Grant with the unfortunate headline, Is Same-Sex Marriage Legal Under Federal Law? Maybe. Sometimes.

This headline is entirely wrong. Same-sex marriage is absolutely, unequivocally not legal under federal law. Ever. At any time.

That is because of a federal law known as the Defense of Marriage Act (usually abbreviated DOMA). Public Law 104-199 was passed by overwhelming bipartisan majorities in both houses of Congress (342-67 in the House, 85-14 in the Senate), and signed into law by President Bill Clinton on September 21, 1996.

One part of the Defense of Marriage Act provided that states could not be obligated to recognize same-sex marriages contracted in other states.

The other key provision of DOMA (found in Section 3 of the bill), now under challenge in several courts, defines marriage for all purposes under federal law. It states:

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.

This statute (now codified in Title I, Chapter 1, Section 7 of the United States Code) has never been repealed. It has never been struck down by the U.S. Supreme Court. It is the law. And it is unequivocal in forbidding federal recognition of same-sex marriage.

What Grant actually describes is not any ambiguity about the state of the law, but rather the duplicity of the current administration under President Obama and Attorney General Eric Holder. It is no secret that Obama would like to see DOMA repealed, but Holder has stated that in the meantime, Section 3 will continue to be enforced by the Executive Branch.

Holders actions, however, have belied those words. The latest example, described in Grants blog post, was Holders decision to overturn a decision by the Board of Immigration Appeals, which had ruled against an application for resident status by an Irish man who entered into a civil union with an American in New Jersey. Holder asked the Board to consider the case again, and determine whether, absent the requirements of DOMA, respondents same-sex partnership or civil union would qualify him to be considered a spouse under the Immigration and Nationality Act. This is irrational, given that the requirements of DOMA are not absent, and it is utterly hypocritical when viewed in light of Holders promise to continue enforcement of DOMA.

In addition to the misleading headline, there is one other part of Grants blog post that requires some careful fact-checking. It is this paragraph:

One reason for the controversies is that the Department of Justice is opposed to the law. The opposition, however, only applies in certain jurisdictions. Contrary to headlines, the Department of Justice will defend DOMA in some courts. In February, Attorney General Eric Holder informed the Congress that the Department of Justice is opting out of defending DOMA in the U.S. Court of Appeals for the Second Circuit. In other words, the DOJ will no longer defend the act if a gay couple appeals a decision in New York, Connecticut, or Vermont, but it will defend the act in other states.

Really? I have not hesitated to accuse the Attorney General of hypocrisy with regard to DOMA, but not with quite such a level of hypocrisy that they would argue in one court that a law is unconstitutional while simultaneously arguing in another court that it is not. Yet that is what Grant appears to be stating is the current stance of the Justice Department.

I think Mr. Grant has mis-read (or perhaps not read all of) Mr. Holders letter to Congress on February 23. The very opening sentence of that letter reads,

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.

This amounted to a reversal of position for the Justice Department, which had defended DOMA, in the past, in other cases. For example, a federal district court judge in Massachusetts last year declared DOMA unconstitutional in a pair of cases, which are now on appeal to the First Circuit. The Justice Department filed briefs defending DOMA in those cases as recently as January 13 of this year.

To understand why the administration reversed its position, you must understand the different standards for deciding equal protection casesrational basis vs. heightened scrutiny.

When a law creates a classification that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the constitutions guarantee of the equal protection of the law. However, most laws are judged under a rational basis test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, heightened scrutiny usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. Use of a heightened scrutiny standard increases the chances of a court striking down a legislative enactment.

Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases mentioned above) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on sexual orientation are subject only to a rational basis test. The DOJs briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the 2nd) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that classifications based on sexual orientation warrant heightened scrutiny. (It could be argued that defining marriage as the union of a man and a woman actually does not classify on the basis of sexual orientation at all, but that would require a separate blog post.)

Holder wrote, Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen (the two new Second Circuit cases).

What if the Second Circuit rejects the administrations heightened scrutiny argument? Holder stated,

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3s constitutionality may be proffered under that permissive standard.

Here, Holder appears to stand by the Departments previous arguments under the more lenient standardbut he could hardly have done otherwise without appearing utterly foolish. But to say this means the Department will defend the act at all, as Grant states, seems a stretch. Note, for instance, the use of the passive voicea reasonable argument … may be proffered, not that we will proffer such an argument.

Even before making the statement above, Holder declared, This is the rare case where the proper course is to forgo the defense of this statute.

Still, the focus in Holders letter on the newer Second Circuit cases might be seen as still leaving some ambiguity about the DOJs defense of DOMA in other courtsuntil you reach the penultimate paragraph of the letter. Here, he states,

I will instruct Department attorneys to advise courts in other pending DOMA litigation [emphasis added] of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The reason for the primary focus on the Second Circuit cases in Holders February 23 letter to Congress was one of timinghe concludes by warning Speaker Boehner (as the likely new defender of DOMA), A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011just sixteen days after the letter was sent. But courts in other pending DOMA litigation would be given the same statement.

The position of the administration on the defense of DOMA is now clearthe law violates the equal protection component of the Fifth Amendment and the proper course is to forgo the defense of this statute. As a result, the Department will cease defense of Section 3.

Tobin Grants claim that DOJs opposition [to DOMA] only applies in certain jurisdictions and that the DOJ … will defend the act in other states must be rated as incorrect.

The Future of the Defense of Marriage Act (DOMA)

by Peter Sprigg

March 4, 2011

The federal Defense of Marriage Act (DOMA) was enacted in 1996 by large bipartisan majorities in both houses of Congress and signed into law by President Bill Clinton. It ensured that states would not have to recognize same-sex marriages from other states, and that the federal government would recognize only the union of one man and one woman as marriage.

Yet now, DOMA is under the sharpest attack in its historydespite the fact that four federal courts have already upheld its constitutionality, and no federal or state appellate court has ever said that it violates the U.S. Constitution. In July 2010, however, a single federal District Court Judge in Boston, Joseph L. Tauro, ruled in a pair of cases that the federal definition of marriage in DOMA is unconstitutional. In November 2010, two more federal court challenges to DOMA were filed in New York and Connecticut. In total, there are no less than ten currently pending federal court cases which involve some form of challenge to DOMA. Here are some key questions and answers about the current status of this law:

Q: What did Attorney General Eric Holder announce on February 23 about the administrations position regarding the federal Defense of Marriage Act (DOMA)

A: In a press release and in a letter to Congress, Mr. Holder said that he and President Obama have concluded that one of the provisions of the Defense of Marriage Actthe one which limits the federal government to recognizing only marriages between one man and one womanis unconstitutional. This marked a sharp reversal, since the Department of Justice has submitted several briefs defending the constitutionality of DOMA in previous court cases.

This decision represents a shocking abdication of the Attorney Generals, and the Presidents, constitutional responsibility to take care that the laws be faithfully executed, and sets a dangerous precedent for future executive refusals to defend existing law.

Q: What motivated this change of position?

A: Politics likely played a major role, as the Obama Administration has been under intense pressure from pro-homosexual activists to stop defending DOMA. There is also evidence which suggests collusion between the Justice Department and attorneys who are challenging DOMA and the definition of marriage in court. Attorneys in the case of Perry v. Schwarzenegger, who seek to overturn Californias marriage amendment (Proposition 8) and establish a federal constitutional right to same-sex marriage, filed a Motion to Vacate Stay with the Ninth Circuit, containing detailed citations from the Attorney Generals letter, just hours after the letter was released.

Family Research Council has filed a Freedom of Information Act (FOIA) request for any communications between the DOJ and litigants and attorneys in this case or in the cases challenging DOMA in other courts.

Q: Hasnt President Obama opposed DOMA all along?

A: Yes, Mr. Obama favors the repeal of DOMA. However, it is possible to believe that a law represents bad public policy, while at the same time believing that it does not violate the Constitution. This had been the position of the Obama administration until February 23, 2011.

QHow can the Administration justify such an about-face?

A: Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases decided by Judge Tauro) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on sexual orientation are subject only to a rational basis testthe most lenient level of scrutiny, under which legislative choices are accorded the greatest deference. The DOJs briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the Second) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that classifications based on sexual orientation warrant heightened scrutiny.

Q: What does heightened scrutiny mean?

A: When a law creates a classification that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the Constitutions guarantee of the equal protection of the law. However, most laws are judged under a rational basis test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, heightened scrutiny usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. The Supreme Court has never said that this standard applies to sexual orientation. It would increase the chances of a court striking down laws which limit marriage or its benefits to the union of one man and one woman, such as DOMA.

Q: How did the Attorney General justify this call for heightened scrutiny.

A: Mr. Holder asserted that a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable. However, he cited only one source in support of this contentionone dated 1992. In a footnote, he further claims that discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed.

In fact the theory that there is a gay gene or that people are born gay has been largely discredited by science since the early 1990s. Studies of identical twins, such as one in the American Journal of Sociology in 2002, support the hypothesis that less gendered socialization in early childhood and preadolescence shapes subsequent homosexuality. And evidence that homosexuals can change has come even from Dr. Robert Spitzer, the psychiatrist who led the effort to remove homosexuality from the official list of mental disorders. In a 2003 study, Spitzer found that changes [in sexual orientation] … were not limited to sexual behavior and … self-identity. The changes encompassed sexual attraction … the core aspects of sexual orientation.

Q: Who can defend DOMA if the Justice Department refuses to?

A: The courts have long recognized Congresss vital interest in defending the constitutionality of its Acts in the rare circumstances that the Justice Department refuses to provide such a defense. This happens as recently as 1983 in INS v. Chadha. The Supreme Court made clear in the 1997 case Raines v. Byrd that individual members cannot assert these interests, as Congress can only act through resolutions passed by the majority. Either chamber may do so individually.

Q: What would it mean if DOMA were struck down by the courts?

A: The immediate result would be federal government recognition of same-sex marriages that are already legal in the state where they occurred. However, if the federal definition of marriage as the union of one man and one woman is found unconstitutional, it would be only a matter of time before the same definition at the state level would be struck downincluding in the 29 states that have put that definition in their own constitutions. This is exactly the remedy sought by the plaintiffs in Perry (the Proposition 8 case), which is now before the Ninth Circuit.

Q: What should be done now?

A: Congress must continue to defend DOMA in court, since the Justice Department refuses to do so. Bills to legalize same-sex marriage must be defeated in state legislatures, and additional state marriage amendments must be adopted defining marriage as the union of a man and a woman. These make it hard for any court to find that there is an emerging consensus in favor of same-sex marriage. Finally, pro-family groups actively involved in the defense of marriage in court, such as the Alliance Defense Fund, and others involved in filing and coordinating amicus briefs, such as Family Research Council, need financial support for these efforts.

It is quite possible that the issue of same-sex marriage will reach the U. S. Supreme Court in 2012 or 2013. Pro-family citizens and office-holders must speak now, or forever hold your peace.

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