Category archives: Marriage

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.

Illinois Foster Care System: Leaving No Good Deed Unpunished

by Family Research Council

July 29, 2011

As someone whose extended family has been significantly impacted by the foster care system, this story out of Illinois was of interest to me personally—but the implications for the over 2,000 children involved and for Christians are profound.

The Chicago Tribune recently reported week that the state of Illinois has acted to sever its longstanding relationship with Catholic Charities. The state has found Catholic Charities and Catholic Social Services to be in non-compliance with the states new law authorizing civil unions. The Trib reports:

In letters sent last week to Catholic Charities in the dioceses of Peoria, Joliet and Springfield and Catholic Social Services of Southern Illinois, the Illinois Department of Children and Family Services said the state could not accept their signed contracts for the 2012 fiscal year.

Each letter said funding was declined because your agency has made it clear that it does not intend to comply with the Illinois Religious Freedom Protection and Civil Union Act, which the state says requires prospective parents in civil unions to be treated the same as married couples.

Illinois civil unions law contains exemptions for those religious bodies that do not want to perform or officiate civil unions. But as weve stated elsewhere, so called religious exemptions are usually just a way of greasing the skids to get controversial legislation passed. The exemptions could be challenged in court or be removed by future legislation. In a classic example of dont believe their talking points, Equality Illinois published this statement about the law on their website under a section titled Religious Freedom prior to its passage:

  • This Act would also not impact faith-based adoption agencies or adoption procedures. The Act does not amend the Adoption Act.

Thankfully the Catholic Charities is not taking this lying down. The three agencies in question have filed suit with the Thomas Moore Law Center against the Illinois attorney general and DCFS. Their request is altogether reasonable:

In the lawsuit, the agencies sought the courts permission to preserve their current policy of granting licenses to married couples and single, non-cohabiting individuals and referring couples in civil unions to other child welfare agencies.

Some readers may remember that in 2006, Catholic Charities of Boston ceased doing adoptions rather than violate their conscience and religious convictions by placing children with homosexual couples. We hope and pray that Catholic Charities in Illinois will receive a better legal outcome.

What is fascinating in this debate is that you have the state claiming that the law requires Catholic Charities give homosexual couples in civil unions equal consideration with married coupleseven though the social science data overwhelming demonstrates that children do best when raised by a married mother and father. A cursory reading of the social science makes it obvious that not all family situations are equal in the benefit they provide to children. (See Dr. Pat Fagans work on the MARRI project here, here and here for starters.). And yet the state demands that adoption and foster care agencies treat different family structures as if they were, in fact, the same.

While Catholic Charities works for the undeniable good of placing children in the best family situations available, the state of Illinois has embraced a social experiment wherein the best interests of children becomes subordinate to special interests of a vocal minority.

Finally, its important to remember why the state is involved in adoption and foster care services in the first place: to serve the best interest of the children under its care, not to bestow parenthood on individuals or couples desirous of the title or affirmation. Its about the children. Or at least it used to be in Illinois. Might one legitimately ask when the state will decide that Christians who disagree with normalizing homosexuality are unfit to serve as adoptive or foster parents?

Christians across our nation have an opportunity to be the hands and feet of Christ by welcoming children in need into their families. Our friends at Focus on the Family have some great resources and a model in Colorado for making a difference through adoption and foster care.

Texas Gov. Rick Perry: “Obviously gay marriage is not fine with me…”

by FRC Media Office

July 28, 2011

Last week in Aspen, Colorado, Gov. Rick Perry of Texas addressed New York’s new same-sex marriage law by saying “That’s New York, and that’s their business, and that’s fine with me…”

In his first interview on the issue since making those comments, Gov. Perry spoke with Family Research Council President Tony Perkins today to addresses the Aspen remarks, discuss the 10th Amendment’s application to marriage, and his support for a federal marriage amendment.

Gov. Perry commented:

I probably needed to add a few words after that ‘it’s fine with me,’ and that it’s fine with me that a state is using their sovereign rights to decide an issue. Obviously gay marriage is not fine with me. My stance hasn’t changed.”

Listen to the rest of segment covering marriage here. The unofficial transcript follows the jump below.

To hear the complete interview with Gov. Perry, tune in Friday to Washington Watch Weekly.

For more on the marriage issue, see FRC’s documentary, “The Problem with Same-Sex Marriage.”

TONY PERKINS: You mentioned a moment ago the marriage amendment back in Texas, back in 2005 or, I think it was 2005.

GOV. PERRY: Yes sir, yes sir.

TONY PERKINS: In fact I was down there for a number of those pastors conferences. Worked with you on a couple of occasions as we were promoting that marriage amendment in Texas, so I know where you stand on the issue. But last week you were in Aspen, Colorado, at a Republican governors event, and you made some comments regarding New Yorks recent passage of same-sex marriage. If I can, I want to quote those words from you that have been circulated, and give you a chance to respond to that.

GOV. PERRY: Sure

TONY PERKINS: You said that, Our friends in New York six weeks ago passed a statute that said that marriage can be between two people of the same sex and you know what that is New York and that is their business and that is fine with me, that is their call. If you believe in the tenth amendment, stay out of their business.

GOV. PERRY: Let me just, I probably needed to add a few words after thats fine with me its fine with me that the state is using their sovereign right to decide an issue. Obviously gay marriage is not fine with me, my stance had not changed. I believe marriage is a union between one man and one woman.

My record as governor of Texas reflects that — a very strong commitment to defending traditional marriage, including those efforts of Texas to pass the defense of marriage act, which you were at some of those events where we were promoting the people and state of Texas to go and defend traditional values.

And I might add it overwhelmingly was adopted by seventy-five percent of Texas voters. Again, my comment reflects my recognition that marriage and most issues of the family historically have been decided by the people at the state and local level. That is absolutely the state of law under our constitution.

TONY PERKINS: Well, I agree as an author of nations first convent marriage law in the state of Louisiana back when I was in office. I think marriage and family policy is best dealt with at the state level. But the tenth amendment — and I am a strong supporter. I fought the federal government on a number of issues when they were trying to force us to do things.

But when you look at whats happening on marriage, the real fear is that states like New York will change the definition of marriage for Texas. At that point the states rights argument is lost.

GOV. PERRY: Right and that is the reason that the federal marriage amendment is being offered, its that small group of activist judges, and frankly a small handful, if you will, of states, and liberal special interests groups that intend on a redefinition of, if you will, marriage on the nation, for all of us, which I adamantly oppose.

Indeed to not pass the federal marriage amendment would impinge on Texas, and other states not to have marriage forced upon us by these activist judges and special interest groups.

Our constitution was designed to respect states including the amendment process. That is one of the beauties and why I talk about in my book Fed Up that we need as a nation to get back to really respecting our constitution and the tenth amendment in particular which allows the states to impede against each other, whether it is on taxes or regulations or litigation and create the economic environment.

But the overall constitutional protection, if you will, by and how we amend our United States Constitution to reflect the values of the nation as whole is very important. Balanced budget amendment, another one of those with all of the debt ceiling talk going on right now. The balanced budget amendment and clearly telling those people in Washington, look your spending too much money, and one way we protect your human nature, which is to say yes to special interest groups, is to prohibit you from doing that by passing a balanced budget amendment. And I hope well do that, and I hope we also pass the federal marriage amendment as well.

TONY PERKINS: Governor, we are about out of time but I dont want to put words in your mouth, but I think I hear what you are saying. The support given whats happening across the nation, the fear of the courts, the administrations failure to defend the defense of marriage act.

The only and thin line of protection for those states that have defined marriage, that have been historically been defined between a man and a woman. The support of a marriage amendment is a pro-states rights position, because it will defend the rights of states to define marriage as it has been.

GOV. PERRY: Yes sir, and I have long supported the appointment of judges who respect the constitution and the passage of a federal marriage amendment. That amendment defines marriage between one man and one woman, and it protects the states from being told otherwise. It respects the rights of the state by requiring three quarters of a states vote to ratify. Its really strong medicine but is again our founding fathers had such great wisdom and their wisdom is just as clear and profound today as it was back in the late eighteenth century.

TONY PERKINS: Well Governor Perry I want to thank you from taking time out of your schedule to join us on Washington Watch Radio. I look forward to being with you in Houston, Texas, in Reliant Stadium I look forward to seeing you.

GOV. PERRY: Its going to be a great day and I look forward to being with you, God speed to you and God bless you.

FRC Denounces Decision by New York State Legislature to Redefine Marriage

by FRC Media Office

June 25, 2011

FOR IMMEDIATE RELEASE: June 24, 2011

WASHINGTON, D.C.- Family Research Council (FRC) President Tony Perkins reacted to the vote by the New York State Senate, releasing the following statement:

Enormous political coercion has resulted in a profound failure of moral courage in the New York Senate. A clear majority of the people of New York oppose counterfeit ‘marriage,’ but Gov. Cuomo and anti-family lawmakers have shown that their allegiance is to a small but vocal minority seeking to redefine marriage and family.

The so-called religious protections that were tacked on to the bill will ultimately do nothing to protect the religious rights of New York citizens. As we go forward there is little doubt that the “incentives,” some taxpayer funded, used to sway votes, especially Republican ones, will be exposed.

While it was the Democrats who were pushing this agenda, it is the Republicans in the NY Senate who ultimately allowed this to happen, especially Senate Majority Leader Dean Skelos. Sadly, the families of New York are not represented well by either of the state’s major parties on this issue. This battle however, is not without its heroes. State Senator Ruben Diaz, Rev. Duane Motley, Jason McGuire and the National Organization for Marriage worked tirelessly for the families of New York in this battle, and they should be praised for their work - it is not all for naught.

The New York state legislature’s denial of its citizens a chance to vote on the issue of marriage shows it is long overdue that the U.S. Congress begin taking these threats to marriage seriously. They should move to allow the people of the U.S. the right to vote on an issue they clearly understand, as evidenced each time the issue of marriage is put to a direct vote of the people,” concluded Perkins.

-30-

No Religious Exemptions Can Redeem Homosexual Marriage

by Peter Sprigg

June 24, 2011

Efforts to legalize homosexual marriage in New York remain stalled, at this writing, with the supporters of redefining marriage needing one more Republican vote in the states Senate.

Reports indicate that efforts are underway to draft expanded religious exemptions that could protect the liberty of religious organizations that disapprove of homosexual conduct or of homosexual marriage.

It is true that pro-family groups (including FRC) have argued that legalizing homosexual marriage would create a threat to religious liberty. The most often cited example is how Catholic Charities was forced out of the adoption business in Massachusetts and the District of Columbia after those jurisdictions legalized homosexual marriage, because the group was unwilling to compromise its principles by placing adoptive children with homosexual couples.

But even if religious non-profits like Catholic Charities were to be protected, what about Christians in business, like the wedding photographer in New Mexico who was sued for declining to photograph a homosexual commitment ceremony?

The only kind of religious exemption broad enough to completely protect rights of conscienceone saying, basically, Any person, organization, or business that does not approve of same-sex marriage will not be required to recognize homosexual relationships as marriageswould be completely unacceptable to the advocates of homosexual marriage. Forcing the rest of society to affirm and celebrate homosexual relationships is precisely the goal of their movement.

However, even such an absolute religious and conscientious exemption to a homosexual marriage bill would not make the redefinition of marriage acceptable, or even tolerable, for one simple reasonthe principal objection to homosexual marriage has nothing to do with religion. This is something that people on both sides of this debate need to be constantly reminded of.

We are not just fighting for the right of religions to define marriage for themselves, apart from the definition of civil marriage. This is because, at its heart, marriage is neither a civil institution nor a religious institution.

Instead, marriage is a natural institutionrooted in the order of nature itself.

The reason marriage is defined as the union of one man and one woman is because it takes precisely one man and one woman to create a new human life. Marriage is treated as a public institution because it is in the public interest (not just in the private interest of particular couples) for the human race to reproduce and continue into future generations.

It is also in the public interest for society to work at bonding each child to the mother and father whose sexual union produced them. This was evident even to the ancients, but modern social science has confirmedbeyond a shadow of a doubtthat children raised by their own married mother and father are happier, healthier, and more prosperous than children raised in any other living situation.

I wrote a pamphlet earlier this year listing The Top Ten Harms of Same-Sex Marriage. The threat to religious liberty was only one out of the ten. Even if that harm could be thoroughly forestalleda grade of 10% is still a failing grade.

The core message of the opposition to homosexual marriage is not just, Dont make us perform same-sex weddings in our church. Instead, it is: Society needs children, and children need a mom and a dad.

Thats true whether you are a Christian, a Buddhist, or an atheist.

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 Legal Errors in A.G. Holders Refusal to Defend DOMA

by Chris Gacek

March 14, 2011

Paul Linton has worked with the Family Research Council in producing amicus briefs defending Proposition 8 (Californias traditional marriage amendment) and the Defense of Marriage Act (DOMA) (federal definition of marriage). He is one of the best writers on the constitutionality of one man-one woman marriage laws. Mr. Linton is Special Counsel with the Thomas More Society in Chicago.

Recall that Attorney General Holder announced on February 23rd that the Department of Justice would no longer defend DoMA from legal challenges going forward. On March 1st Mr. Linton completed a very powerful response to the arguments laid out by Attorney General in his letter to members of Congress. Lintons reply available below really knocks the props out from under the Administrations arguments.

Read and enjoy:

Linton_Resp to Holder-DoMA surrender_2011.03.01

Same-sex “marriage” hurts

by Cynthia Hill

March 4, 2011

Think that same-sex “marriage” won’t hurt anyone? Think again. If you or someone you love is one of the following professions, take a look at the info provided courtesy of the Alliance Defense Fund. ADF is working on a project that will make this type of information more accessible and searchable by occupation. In the interim, read how certain professions have been negatively impacted by the demands of the homosexual agenda:

Educators

Attorneys

The State Bar of Arizona weighed revisions to the attorneys’ oath of office that would silence conservative viewpoints on moral issues. See:

Intellectual Conservative and Response to Proposed Change to Oath of Admission

Psychologist

Counselor

Physicians

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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