The Basics on the DOMA Case

National Review Online | Published on December 10, 2012

By Edward Whelan

Print Friendly


Here is an overview of why the Supreme Court ought to hold that section 3 of the Defense of Marriage Act is constitutionally permissible–and of why it can’t invalidate section 3 without inventing a constitutional right to same-sex marriage:

1. The Defense of Marriage Act was approved by overwhelming majorities in each House of Congress (85-14 in the Senate, 342-67 in the House) in 1996 and signed into law by President Clinton. Senators who voted in favor of DOMA included Biden, Bradley, Daschle, Kohl, Leahy, Levin, Lieberman, Mikulski, Murray, Reid, Sarbanes, and Wellstone.

The fact that so many strong supporters of gay rights voted for (or, in Clinton’s case, signed into law) DOMA renders ludicrous the revisionist claim that DOMA should be deemed to reflect some sort of animus against gays and lesbians.

Further, far from effecting any change in federal law, DOMA merely made explicit what had always been implicit.

2. Section 3 of DOMA defines what the terms marriage and spouse mean for provisions of federal law only: marriage “means only a legal union between one man and one woman as husband and wife,” and spouse “refers only to a person of the opposite sex who is a husband or a wife.”

DOMA is entirely consistent with our system of federalism. Indeed, it is an implementation of federalism. Under federalism, issues in the state realm are governed by state law, and issues in the national realm are governed by federal law. DOMA doesn’t impair the ability of any state to redefine marriage for purposes of state law, and section 3 of DOMA is an exercise of the federal government’s ability to define marriage for purposes of provisions of federal law.

No one can seriously maintain the proposition that federalism (or any other constitutional principle) somehow requires that the federal government treat as a marriage for purposes of federal law whatever any state defines as a marriage. If that proposition were valid–if, that is, the term marriage were truly an empty vessel that states could define however they wish, with such definition being incorporated into provisions of federal law–that would mean, say, that a state that recognized polyamorous marriages would trigger federal benefits (prorated, let’s assume) for members of those marriages. Even if another state chose to limit marriage to a two-person union, it could allow adult siblings to marry and to reap federal benefits. Yet another state could deem any two business partners, or any two neighbors, who are otherwise unmarried to be married. (After all, if the term marriage can mean anything, it can mean virtually nothing.) In all these instances, the federal government would have to extend the federal benefits of marriage in accordance with the states’ wildly varying definitions.

3. There is no substantively “neutral” position available to the federal government in defining marriage for purposes of provisions of federal law. If the federal government chooses to incorporate into federal law a state’s revised and expanded definition of marriage, it inevitably is subsidizing and implicitly validating that state’s redefinition, and it is forcing the citizens of other states to subsidize that redefinition.

Those attacking DOMA contend that DOMA can be invalidated on constitutional grounds that don’t compel invention of a constitutional right to same-sex marriage. But if (as I think is clearly the case) there is no constitutional right to same-sex marriage, then on what possible basis can the federal government be required to subsidize state experiments in same-sex marriage and to coerce citizens of other states to subsidize those experiments?

4. In defining marriage for purposes of provisions of federal law, it is permissible for the government to set forth the essential components of marriage under federal law while accepting state variants on incidental features.

Section 3 of DOMA sets forth three essential components of a marriage for purposes of provisions of federal law: (a) the marriage must be a “legal union”; (b) it must be male-female; and (c) it must be between two persons. Beyond that, it treats existing state variations on, say, age of consent or degrees of consanguinity as incidental.

Most (perhaps all) opponents of DOMA object only to the second of the three essential components of marriage that section 3 sets forth. They thus implicitly acknowledge that it is entirely reasonable for the federal government to use its own uniform definition of the essential components of marriage as the basis for distributing federal marital benefits.

To be sure, the federal government can’t violate the Constitution in defining the essential components of marriage. But, again, those challenging DOMA claim that DOMA can be invalidated on constitutional grounds that don’t compel invention of a constitutional right to same-sex marriage. If it is constitutionally permissible for the states to have traditional marriage, it necessarily follows that it is constitutionally permissible for section 3 of DOMA to set forth the male-female nature of marriage as one of the essential components of a marriage for purposes of provisions of federal law.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s Bench Memos blog.

Trackbacks

  1. … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  2. … [Trackback]…

    [...] Find More Informations here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  3. homepage says:

    … [Trackback]…

    [...] There you will find 83474 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  4. … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  5. … [Trackback]…

    [...] Informations on that Topic: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  6. … [Trackback]…

    [...] Informations on that Topic: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  7. see more says:

    … [Trackback]…

    [...] Informations on that Topic: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  8. gold ira says:

    … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  9. hier klicken says:

    … [Trackback]…

    [...] Read More: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  10. … [Trackback]…

    [...] There you will find 28993 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  11. … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  12. … [Trackback]…

    [...] Informations on that Topic: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  13. … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  14. … [Trackback]…

    [...] Read More: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  15. kimonos says:

    … [Trackback]…

    [...] There you will find 57429 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  16. … [Trackback]…

    [...] Read More: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  17. … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  18. … [Trackback]…

    [...] There you will find 48945 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  19. … [Trackback]…

    [...] Find More Informations here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  20. … [Trackback]…

    [...] There you will find 15050 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  21. … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  22. click here says:

    … [Trackback]…

    [...] There you will find 9533 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  23. … [Trackback]…

    [...] Informations on that Topic: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  24. … [Trackback]…

    [...] Informations on that Topic: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  25. … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  26. … [Trackback]…

    [...] Informations on that Topic: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  27. Hermes Kelly Outlet…

    I am so satisfied finding this blog and I have to admit that all information stated here is really useful. I hope that youwill continue to post such great posts like this one in the future. Thanks a lot again.\nBuy Cheap Hermes Handbags Outlet Online,…

  28. … [Trackback]…

    [...] Read More: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  29. … [Trackback]…

    [...] Find More Informations here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  30. … [Trackback]…

    [...] Find More Informations here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  31. … [Trackback]…

    [...] Read More here: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  32. … [Trackback]…

    [...] There you will find 55793 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  33. jxksxf says:

    jxksxf…

    Agree with your post. Can you can keep update your post. I want back. bye!…

  34. … [Trackback]…

    [...] Informations on that Topic: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  35. Great…

    What Is The Best Way To Import MySpace Blogs To Facebook?…

  36. … [Trackback]…

    [...] There you will find 11981 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  37. … [Trackback]…

    [...] There you will find 10699 more Infos: eppc.org/publications/the-basics-on-the-doma-case/ [...]…

  38. Trackback says:

    wow thats great…

    Where are some good places to get good free blogger templates?. I know of pyzam but I would like to search others, what are some good sites?….

  39. Trackback says:

    Maybe……

    How can i change the font on my wordpress blog?…

  40. Facebook.com says:

    Good info…

    What is the best computer virus remover?. My computer is slow as hell and freezes on me. Most of the time, I have to restart my computer. I think I may have a virus on my computer. What is the best software to remove the viruses of my computer?….

  41. Trackback says:

    Like it…

    How to upload a wordpress backup on to a site?…

  42. mdwveMlt0T says:

    Souls in the Waves…

    Great Early morning, I just stopped in to visit your internet site and imagined I would say I loved myself….

  43. Whispering Misty…

    So sorry you are going to skip the workshop!…

  44. Google says:

    Google…

    Below you’ll come across the link to some websites that we feel you must visit….

  45. Third Flower…

    My spouse and that i have been now delighted that Albert could execute his scientific tests as a consequence of the tips he had via your web page. It is actually every so often perplexing to simply usually be giving away measures which some individuals…

  46. Like it…

    How to add a new button to firefox navigation toolbar?…

  47. Healing’s Dragon…

    to discover concerns to enhance my web site!I suppose its ok to produce usage of a few of your respective ideas!!…

  48. much more to write.but that’s exactly the…

    point. because ordinary people do not very often take advantage of limousine service, a limousine blog provides them with vital information about sizes, styles, features, options, prices, and proper limousine etiquette. because the everyday person very…

  49. oxfam america, amnesty international, save the children…

    and many more, you will see that they all have a big donation button on every or almost every page of their websites. those buttons are always very visible.a professional website will also make it much easier to spread the message…

  50. to describe too much is to take…

    elmore leonard’s advice about writing, “leave out the boring parts.”fancy phrasing and narration: the other day, i came across a quote from charles dickens: “we must now return, as the novelists say, and as we all wish they wouldn’t….”dickens i…

  51. Anonymous says:

    from repeated practice. so the more you…

    practice typing, the faster you will get at it. a very entertaining way of doing this might be to chat with your friends over any social networking site.however, stay away from using chat room acronyms as it may become a bad…

  52. heard or you’ve seen wordpress, you’ve been…

    surprised how many millions of copies are downloaded every year and how many large and small sites use this blogging platform to host, not just their blogs, but their authority sites, their sales letters and the membership sites and even their…

  53. toys says:

    of your organization. you can reach a…

    lot of people very fast through the internet. it is also free or very cheap to spread the information and advertise on the internet. offline methods of advertising are very expensive and often completely ignored by people who are flooded with…

  54. szNnWN1Dp7 says:

    The Silent Shard…

    This may in all probability be very useful for many of one’s positions I plan to don’t only with my website but…

  55. los valores says:

    achieve these goals.accepting the helpit might be…

    difficult to accept the help with writing blog posts but many businesses have to just to keep up with the demand and their need. in the event that you make the choice to hire a professional writer, you will find that…

  56. many benefits of combining marketing strategies. social…

    media or social marketing and email marketing are significant marketing channels that compliment each other and provide a great source of analytics and feedback. both channels allow the opportunity to stay in touch with the customers and provide future…

  57. keep in mind is whether what your…

    putting up on your blog is helpful to your readers. if what you post isn’t the highest quality, consider revising it until it’s so high quality your readers won’t want to go anywhere else. if you are an aspiring author, if…

  58. the one you reside in, you really…

    need to have strong cross-cultural ties. for example, i went through a stage where i read british authors extensively. i became quite familiar with the subtle differences between the english of the british isles and the u.s. then i spent 5…

  59. are through affiliate programs promotion, paid reviews…

    and selling advertisements. you can place advertisements on the great blog sites to get money. this is a simple and free way to earn money in the internet.there are many blogs that can be found in the blogosphere. the question is…

  60. to write successful articles, once you keep…

    some simple points in mind. your articles just need to contain some specific features. good article offers enough value to your readers, delivering high traffic back to your site. here are three essential features that a good article should contain.1. …

  61. by linda a. hill is the wallace…

    brett donham professor business administration at harvard business school. kent lineback spent many years as a manager and an executive in business and government. they are the coauthors of being the boss: the 3 imperatives for becoming a great leader….

  62. up on a blog.so, lets recap. the…

    most popular form of blogging tends to be informative blogging done by consumers, and personal blogs. while corporate blogs do fairly well, they aren’t always the favorite as customers want reviews or stories from people just like them. the average jo…

  63. are many different applications for the new…

    author and they may often find that not all of those are truly “technical”. so for the new professional here’s a quick list of some common documents they may be asked to create and what they are for.background reportsunless you work…

  64. Imc9AElKLy says:

    Woman of Alien…

    Perfect operate you have finished, this web site is really amazing with wonderful information. Time is God’s means of keeping everything from happening at once….

  65. have the know-how.everyone should find the time…

    to edit. but if you’re not a natural speller, if grammar is not your comfort zone and if good writing style is not your forte, then what are your options?most computer word processors function as a spell checker and grammar checker….

  66. learn pdr says:

    this person as an entrepreneur, in fact,…

    he sound more like an i.t. guy. it’s so cold and robotic in a way.clearly, john’s brand would be someone that teaches the lead generation side of things. so, i would go to his blog to get some tips here and…

  67. their suggested posts to read and brushing…

    up on what’s current in any sphere of spanish culture. again read the comments and make notes of any useful phrases and vocab.elle blogs espanoles another way many people find more comfortable with is to find a spanish blog they have…

  68. slow down the loading of the page…

    and the reader will leave the site.7. urls – your urls must include the keywords and are vital just like the titles.these are simple techniques used by seo to make your blog successive. article writing is used as a marketing tool…

  69. a couple of comic book series to…

    try this on are x-statix and waid and kitson’s legion of superheroes. the issues of these series are so well-constructed that they can be read backwards just as easily as they can be read linearly.if a story is not able to…

  70. have had and then maybe you will…

    see my point.unfortunately, even though the obama administration got rid of the ksas, the federal resume still looms. and, don’t be fooled by the fact that the government has done away with ksas – that is not the case. rather, the…

  71. packages available and you have to choose…

    the one which fits your website best. blogs usually go for shared hosting because they require limited space but other option include dedicated, vps and cloud hosting. make sure the host gives you the opportunity to expand in the future. you…

  72. world we can turn to trusted review…

    sites before making big purchases.for those of you eager to encourage people to buy your wares it is important that you find a trusted copywriter who won’t produce ethically questionable marketing material. it is worth looking for an experienced profe…

  73. on your blog start building backlinks to…

    your blog through social media, social bookmarking, forum posting (add a signature to your posts or in your profile with your main keyword as the anchor text), article marketing, or buying high pagerank linkswithout going into detail about the above ta…

  74. problems, issues and queries faced by the…

    target audience.thought provoking and compelling contentin too many cases, blog posts fall flat on the faces because they don’t provide anything new to think about or discuss. a great way to drag in audience is to write on topics that are…

  75. crafted from the sturdiest hardwood material so…

    it lasts for a long time. check out hand finished wooden products. hand-finished products are usually products with the most intricate details. this eclectic style globe drinks cabinet is also a great room accessory.2. sun dial and pocket compassif you…

  76. in recognizing quality user generated content from…

    spun redistributed content. in the past many bloggers used to write one article, spin in, and blast to hundreds of auto approved blogs and article directories.this kind of technique no longer works and can even get your site banned from major…

  77. Funny…

    I’m planning to write a literature blog, and I want to get as much readers as possible, even those who don’t like books much, to be able to encourage them to read. Suggestions? No bashing please!….

  78. click here says:

    in the series he explores questions of…

    authority, government, multi-cultural conflicts and even addiction. few books span across history and culture as completely as dune. the science in many ways takes a back seat to the other issues discussed, but in spite of that, and i would propose…

  79. allowing these in will be a bad…

    mistake. at the least you’ll be inundated with advertising, and at the worst some very unwelcome posts might be made. you, as the site owner, will be responsible for what’s on your forum. as you go through the registrations each day…

  80. visit us now says:

    you are both passionate and knowledgeable about…

    the writing is merely getting the knowledge out of your head and sent into the blogosphere. that sound pretty simple, and it really can be. but you should think about a few things as you are writing.first, what are you trying…

  81. and traffic. if you are planning on…

    starting your own blog, it’s essential that you host your blog yourself if you want to make money online. to choose the best host, there are a few things you need to consider to pick the best blog host out there….

  82. melt him now says:

    writing. no one wants to read a…

    badly designed blog, on blogger and wordpress you can customize your blog and change the colors background picture and fonts and sizes as you please putting thought,time,and effort into making a suitable design will make your site look more professiona…

  83. have selected the companies, you could make…

    a comparison between your top choices.you can also look at the packages that you would want to go for and compare these in order to pick the best one for yourself. you won’t be required to do this if you need…

  84. not make the same mistake. list upcoming…

    live events with dates, time, and place. have a good rant. controversy never hurt anyone. in fact, a little controversy will bring more readers to your blog. nobody wants to read vanilla and bland blogs on a regular basis! list your…

  85. (and blogging ain’t rocket science) and have…

    access to one or more of the several excellent support and training systems and communities out there designed to help you become the successful blogger you want to be.while these individuals drop off the edge of the blogosphere and out into…

  86. money spent on content writing. consult with…

    the seo experts about your business and they will guide you a good economical seo plan to start with it. start looking for an seo company where they provide seo content writing services as one single service. by this, your articles…

  87. to keep their clients happy and not…

    necessarily for the top dollar. they make the most out of the truth and only bend the facts when there is little other choice. there are many key components you need to get in place if you want to make money…

  88. listwhen you publish a new post, wordpress…

    will “ping” the blog search engines. this alerts search engines that the content on your site has changed and readers can view it at the time. the ping can help your blog get indexed fast and increase traffic to your site….

  89. Trackback says:

    I like your blog…

    I have a diet blog i just started, i have about 3 posts, someone said i should start promoting i now. I thought i should wait until i had at least 10 posts and feedback from a few people in various forums before I promote it so maybe in 2 weeks. What d…

  90. more details says:

    bosses follow them with the equally vacuous…

    statement, “and you need to improve your grammar.”so what do you do when your boss tells you “you don’t write well?” the first thing is to figure out what your boss really means. here’s what i recommend. firstly, take a deep…

  91. give it a try, if you do…

    not like it deactivate it and delete. not a problem13. related posts thumbnails – this cool plugin allows related posts to be seen on the side bar and at the bottom of your posts with the featured image, giving your reader…

  92. view more says:

    to use, ask yourself, “how well will…

    this word or sentence communicate with my reader?” good writing is all about communication, not trying to be a modern shakespeare. communicate well and you will write well. there is an emerging need for online writers:the world has gone online now….

  93. become comfortable exploring and recording your past,…

    your present and your future. keeping this up for twenty-eight days will be an excellent beginning to becoming more confident in your writing abilities.â congratulations!awesome! at this point you now have the tools to continue to journal every day. …

  94. dr oz show says:

    an initial 3 ml/kg dose of one…

    of the sample formulas, followed by additional doses of the same formula every 30 minutes thereafter for a total of 11 doses. since the average weight of the subjects was 74.1 kg (ca. 163 lbs), this turned out to be a…

  95. of your life and easy to do….

    the other advantage to wordpress is the number of free training videos online dealing with everything you need to know, and a heck of a lot that is handy to know.wordpress is “alive”. it is an ever expanding and growing system…