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  • Activist Judge Strikes Down Defense of Marriage Act

    by Deal W. Hudson

    Writing at Catholic Advocate, Matt Smith comments on the decision by Federal District Judge Joseph L. Tauro that the Defense of Marriage Act violates the Constitutional Right of married, same-sex couples to equal protection before the law.

    The decision was a classic case of a judge legislating from the bench:

    This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state.

    As Smith insinuates, don’t look for the Obama White House to “defend” DOMA with any vigor. 

     President Obama is still committed to his campaign promise to repeal DOMA calling it “discriminatory.” The case in Massachusetts was brought by state Attorney General Martha Coakley (D), the Kennedy-clan hand-picked candidate who lost to now Senator Scott Brown. Since the suit was filed against the Office of Personnel Management (OPM) regarding a federal law, it was defended in court by the U.S. Justice Department, specifically the Office of the Solicitor General led by now Supreme Court nominee Elena Kagan.

    This case will no doubt now move to a higher court where once again the Obama Justice Department will need to “defend” DOMA.

    One wonders (and hopes) whether the Massachusetts decision will have any direct effect on the Kagan nomination to the Supreme Court now being considered by the Senate.   

    Kagan will still make it to the Supreme Court because the Democrats have the votes and the Republicans lack the will to use their filibuster power to make any waves.  

    Given the horrific impact Kagan’s presence will have on the Court for, presumably, the next twenty five years you would think a filibuster would be in order, if only for its symbolic value. 

    The GOP, at least, should indicate to the American people it realizes the disaster Kagan represents, a disaster ominously foreshadowed by Tauro’s DOMA decision.

     

    The views expressed by the authors and editorial staff are not necessarily the views of
    Sophia Institute, Holy Spirit College, or the Thomas More College of Liberal Arts.

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    • KK

      Why is the judge’s ruling considered legislating from the bench? Isn’t it the job of the judge to protect individual rights? This whole gay-marriage debate would not have been an issue had heterosexual married couples not received benefits from the states. That’s why gay couples are pushing for legalized gay marriage. Marriage (as it should be) between a man and a woman can survive without state benefits, why did we go that route?

      As for Elena Kagan, it disturbed me that she mentioned she has no view of natural rights outside the Constitution, yet the Declaration and other documents help us to understand better the Constitution. The Declaration says we have inalienable rights given to us by God. Many of those rights are not mentioned in the Constitution, but that’s why we have the 9th Amendment, which recognizes all other rights not mentioned in the Constitution. But Kagan doesn’t seem to view natural law as very appealing, yet every judge should appeal to natural law in order to interpret the Constitution in the 21st century.

    • Colin Gormley

      “Isn’t it the job of the judge to protect individual rights?”

      Uh no. The job of the judge is to render and interpret the law. It’s up to the legislature and the people to protect the rights of citizens.

    • KK

      The job of the judge is to render and interpret the law. It’s up to the legislature and the people to protect the rights of citizens.

      Of course judges are to interpret the law. But the law protects individual rights from government infringement on those rights. Sometimes through the legislative process people vote in a way that does not protect rights of citizens (slavery and earlier state constitutions are good examples). That’s why nominees before joining the high court should have a good understanding of natural law and natural rights in a way that presumes liberty for the individual. The problem with the gay marriage debate is that judges conferred a civil right to marriage. Once marriage becomes a civil right, governments can use that idea to define whatever marriage can be. The question is “is marriage a right that deserves equal protection of the laws”?

    • Todd M. Aglialoro

      Here goes my broken record again: the only way to stop same sex marriage is with a federal constitutional amendment. But unfortunately, dead-document purists are carrying water for social liberals. Somehow they think massive social re-engineering is less un-conservative than amending the Constitution.

      • dch2

        You will have zero chance of doing that.

        1. You don’t have the votes in congress to get to 2/3′s of the both houses to pass anything like a SSM ban.
        2. You don’t have the votes in the states, you will need 38 of the states to approve.
        3. People under 30 , be a decisive majority approve of marriage equality, within 15 years they will be in control of election outcomes.
        So the GOP will abandon this issue as it is become a reverse wedge issue.

        Math is not your friend here.

    • John Jakubczyk

      It is the role of the bench to protect the rights of the the person (as it is the duty of the executive and the legislative as well) from being denied or oppressed. However, there is no right to “marry” someone of the same sex, whether in nature or in law. So the whole issue is built upon a lie.

      Marriage by definition requires a man and a woman. Anything else is not marriage no matter who defines it.

      The insanity is that the courts are “creating” something our of a false premise.

      The history of the law is that it “recognized” that which exists in the natural law and natural order.

      This judge is just another egotistical arrogant fool who thinks he can make a name for himself by “creating” a so called right.

      By the way you make a great point that Kagan, because she has no understanding of the natural law, is not qualified to sit on the court. but i would add that the fact that she has never tried a case or gone to court also renders her unqualified. The last we need is a justice who has no clue as to what real lawyers deal with every day.

    • KK

      Here goes my broken record again: the only way to stop same sex marriage is with a federal constitutional amendment. But unfortunately, dead-document purists are carrying water for social liberals. Somehow they think massive social re-engineering is less un-conservative than amending the Constitution.

      How will a federal constitutional amendment stop same sex marriage? I’m not sure what massive social re-engineering you are talking about.

    • KK

      By the way you make a great point that Kagan, because she has no understanding of the natural law, is not qualified to sit on the court. but i would add that the fact that she has never tried a case or gone to court also renders her unqualified. The last we need is a justice who has no clue as to what real lawyers deal with every day.

      It doesn’t bother me that she has no court experience as a judge. There’s been many Supreme Court justices in history who never practiced law before joining the high court (William H. Taft and James MacReynolds, just to name a few). I think there are many law professors (like Robert George at Princeton, Rick Garnett at ND, or Randy Barnett at Georgetown) who could do a better job interpreting the law than Elena Kagan.

    • KK

      “There’s been many Supreme Court justices in history who never practiced law before joining the high court (William H. Taft and James MacReynolds, just to name a few).”

      Actually, there’s been many Supreme Court justices who never were judges before joining the high court. They did have legal experience, but not as judges.

    • Mariana

      It seems to me that the attempt to prevent the legal institution of “gay marriage” is a rather belated rear-guard action on the part of those who believe in the sanctity of marriage. The only reason “gay marriage” is even considered a reasonable proposition now is because Christian marriage has already gone to the dogs. If we Catholics (and other Christians) practiced what we preach, marriage would at least still be a respected institution.

      We can hardly argue that marriage is for procreation, when the majority of married Catholics are contracepting. We can hardly argue that marriage vows are sacred when divorce is a commonplace occurrence. These are both against Church teachings, yes, but actions speak louder than words. If we do not obey our own professed principles, what moral ground have we to stand on?

      And perhaps we should not have instituted such a thing as civil/state marriage in the first place, but left it to the churches.

    • KK

      We can hardly argue that marriage is for procreation, when the majority of married Catholics are contracepting. We can hardly argue that marriage vows are sacred when divorce is a commonplace occurrence. These are both against Church teachings, yes, but actions speak louder than words. If we do not obey our own professed principles, what moral ground have we to stand on?

      Marriage as an institution between a man and woman was elevated to a sacrament by Christ. Marriage vows are still sacred and we can only pray married coupled can walk the talk.

      And perhaps we should not have instituted such a thing as civil/state marriage in the first place, but left it to the churches.

      And people say the state has a vested interest in marriage, but marriage can exist without state help. Of course people will cry foul (which they already have) when they see the state providing breaks and benefits for married coupled just to keep the institution sacred.

    • Todd M. Aglialoro

      How will a federal constitutional amendment stop same sex marriage?

      Isn’t it obvious? Same-sex marriage will triumph nationally when the Supreme Court eventually strikes down states’ exclusionary marriage laws and DOMAs. A constitutional amendment is the only way to prevent that. (It would also, I imagine, overturn state laws allowing same-sex marriage, which will be very tricky since the bell has already been rung. Another reason why we should have gone right for the amendment a decade ago.)

      I’m not sure what massive social re-engineering you are talking about.

      I’m talking about the massive social re-engineering that must result when you fundamentally and artificially alter one of society’s foundational institutions. As goes marriage goes the family, as goes the family goes the world.

    • KK

      Isn’t it obvious? Same-sex marriage will triumph nationally when the Supreme Court eventually strikes down states’ exclusionary marriage laws and DOMAs. A constitutional amendment is the only way to prevent that. (It would also, I imagine, overturn state laws allowing same-sex marriage, which will be very tricky since the bell has already been rung. Another reason why we should have gone right for the amendment a decade ago.)

      A constitutional amendment to define marriage as a union between man and woman would be repealed within twenty years. You would think amending the Constitution to include DOMA would’ve been something done a century ago, or even fifty years ago. But of course it didn’t happen. As important as marriage is to everyone, it would be better to treat marriage like freedom of religion of the 1st Amendment, and not have the state sanction it, because of doing so would draw ire of the minority. Then it’s our job as Christians is to tell and live out what marriage should be, a faithful lifetime relationship between a man and a woman.

    • Todd M. Aglialoro

      A constitutional amendment to define marriage as a union between man and woman would be repealed within twenty years.

      I’ll take my chances. The law is a teacher.

      You would think amending the Constitution to include DOMA would’ve been something done a century ago, or even fifty years ago. But of course it didn’t happen.

      It didn’t happen because there was no need for it. Same-sex marriage was unthinkable then. By your reasoning we should right now be working on an amendment preventing a man from marrying his toaster.

      As important as marriage is to everyone, it would be better to treat marriage like freedom of religion of the 1st Amendment, and not have the state sanction it,

      Well, that’s the libertarian argument, and that’s where we’re headed, I’m sure. And that will accomplish the real goal of the hardcore gay marriage activists: the destruction (or effective destruction through severe diminishment) of marriage as a foundational institution. It will become instead a quaint custom of the religious, sequestered away in their churches and bedrooms, and a symbolic gesture for the few remaining seculars who continue to find it (whether the dresses and flowers or the purely natural notion of exclusive commitment) sentimentally appealing.

    • KK


      As important as marriage is to everyone, it would be better to treat marriage like freedom of religion of the 1st Amendment, and not have the state sanction it,

      Well, that’s the libertarian argument, and that’s where we’re headed, I’m sure. And that will accomplish the real goal of the hardcore gay marriage activists: the destruction (or effective destruction through severe diminishment) of marriage as a foundational institution. It will become instead a quaint custom of the religious, sequestered away in their churches and bedrooms, and a symbolic gesture for the few remaining seculars who continue to find it (whether the dresses and flowers or the purely natural notion of exclusive commitment) sentimentally appealing.

      The “libertarian” argument is not really where we’re headed. We’re headed more towards a faulty modern liberal direction where the states and local governments are recognizing same-sex marriages as equal as opposite-sex marriages, as civil rights to marriages. It’s the liberal direction that’s saying both opposite-sex couples and same-sex couples should receive the same benefits and tax breaks from the state. The liberal direction seem to think that in the Loving v. Virginia case the Supreme Court ruled that marriage is a civil right. Again, it makes me want to ask, should marriage really be considered a civil right under Natural law and our Constitution?

    • John Jakubczyk

      While it is true that there were many appointments to the high bench who were not judges prior to their selection, all of them had extensive legal experience as practicing lawyers or judges.

      Here is the experience of Taft and McReynolds.

      Taft graduated from Cincinnati Law School in 1880. Then he worked in a number of local legal positions until being appointed an Ohio Supreme Court judge in 1887. In 1890, Taft was appointed Solicitor General of the United States and in 1891 a judge on the United States Court of Appeals for the Sixth Circuit. After serving as president of the U.S., he was appointed to the U.S. Supreme Court. The man had a whole lot of experience and was certainly qualified to sit on the nation’s highest court. Further, he, unlike Kagan, understood the Constitution.

      McReynolds practiced law in Nashville and served as Professor of Commercial Law, Insurance, & Corporations at Vanderbilt University Law School, Under Theodore Roosevelt he was Assistant Attorney General from 1903 to 1907, when he resigned to take up private practice in New York, New York. While in private practice, he handled matters for the Government relating to enforcement of antitrust laws. In 1913 he was appointed the 48th United States Attorney General by Wilson, In 1914, he was appointed to the Supreme Court.

      While I have a great deal of respect for academics, unless the person is of a singular genius, there is nothing that helps in understanding the law and its purpose than actually practicing it. I know that sounds ‘snobbish’ since I actually practice law and I am not saying that being a practitioner will make one a competent jurist, but it is certainly true that any of my colleagues would be a better selection than Ms. Kagan.