President Obama has now decided that the Defense of Marriage Act (DOMA), which defines marriage as a union between a man and a woman, is unconstitutional. Thus, the Obama administration says that it will no longer defend that federal law in court. On the campaign trail, President Obama repeatedly asserted that marriage is a union between a man and a woman. Now, the president has apparently decided that his own view, at least when codified as federal law, is unconstitutional.
This is a curious position to take, and it is one that raises suspicions about the sincerity of the original claim. Moreover, Obama’s decision condones and advances blatant lawlessness on the part of judges. DOMA was passed in response to the lawless rulings of state judges, who sought to impose their own definitions of marriage on the citizenry as a whole (claiming that the Constitution made them do it), and in anticipation of further lawlessness by similar judges, who, it wasn’t hard to imagine, would soon force other states to adhere to those verdicts.
One can certainly argue that the federal government has no power to impose its own definition of marriage on the states, but DOMA was written to shield states from having the definitions of other states — or, more exactly, of their judges — be imposed upon them. It defines the use of the word “marriage” in all federal laws or regulations as referring to a union between a husband and wife, and it attempts to shield states from having to comply with other states’ contrary definitions.
Last summer, a federal district court judge struck down the law. Amazingly, he wrote that to “divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning.” He declared that DOMA’s support of marriage as a union between two complementary sexes as husband and wife was motivated “only” by “irrational prejudice” — which he claimed that the Fifth Amendment, written and ratified during the first administration of President Washington, forbids.
Does anyone really believe that the Founders, through the passage of the Fifth Amendment, forbade Congress from using the term “marriage” to refer exclusively to a union between man and woman? The Obama administration apparently does, as it is now implicitly supporting that district court ruling by refusing to appeal. If only the administration were so deferential to all district court rulings.
So, the Obama administration’s view of the Constitution is as follows: Congress has the legitimate authority to compel every American to buy federally approved health insurance under penalty of law, but not to define marriage as it has always been defined, to use that definition of marriage in federal laws and regulations, and to declare that states shouldn’t be bound by other states’ definitions to the contrary.