The Losing Argument for the Defense of Marriage Act


As he defends the federal gay marriage ban, Solicitor General Paul Clement wants you to forget everything he said last week about the federal health care law.

Congress has no constitutional authority to punish people who don’t want to have health insurance, Paul Clement argued last week before the United States Supreme Court. This week? The heralded attorney is arguing, to another panel of federal judges, that Congress has plenty of constitutional authority to punish people who don’t want to marry someone of the opposite sex. Last week, Clement defended states’ rights and labeled as “unprecedented” the federal health care policy. This week, he says that Congress can dictate terms of a federal marriage policy over the objections of states which have legalized same-sex marriage.

Welcome to the forlorn world of the Defense of Marriage Act, the teetering federal law which defines marriage as solely that between a man and a woman and thus deprives same-sex married couples of certain federal rights and privileges. This is the law that President Bill Clinton triangulated onto the books six weeks before the 1996 election. It is the law whose guts were fileted in 2010 by an esteemed federal trial judge. It is the law the Obama Administration last year all but gave up defending. And it may just be the law, with all due respect to Proposition 8, that gets same-sex marriage to the Supreme Court first.

On Wednesday, before the 1st U.S. Circuit Court of Appeals in Boston, it will be left to the House of Representatives to defend the honor of the statute. Led by the indefatigable Clement (watching him these past few weeks is like watching Jerry Lewis in a Jerry Lewis movie), the bipartisan lawmakers’ group (spending your tax dollars) seeks to overturn U.S. District Judge Joseph Tauro’s 2010 decision striking down a key provision of the statute. If the House loses this appeal, if a federalcircuit declares the DOMA unconstitutional, the Supreme Court would be far more likely to intervene. Put that on your potential calendar for next term.




Post Continues on www.theatlantic.com





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73 comments on “The Losing Argument for the Defense of Marriage Act
  1. Oldtaxpayer1001 says:

    The marriage act is constitutial as it does not prevent any individual form having all the benefits granted to any other individual. Those who want these benefits grated for the same sex simply need to marry into an opposite sex status and they would acquire the same so called benefits. The probelm is that there are benefits granted at all using your tax money to seperate those who qualify and preventing those who do not. Remember, those my age survived wonderfully wihout government money or discrimination status. Let’s go back to individual responsibility and then this question would be moot.

    This same seperation of status created the issue of runaway health care costs we have today. Who said we have to provide those without insurance with health care the same as those who do? No responsibility is ridiculous and encourages those who can buy insurance to spend their money elsewhere leaving the responsible with the bill.

    • BelieversAreDelusional says:

      By that argument, heterosexuals have no right to marriage either and the shoe could just as easily be on the other foot. But you wouldn’t like that would you? “Simply need to marry into an opposite sex status” oh, so simply marry someone they don’t want to marry. That sounds very reasonable.

      • MGM46 says:

         Obviously, your thinking as those in your group, is extremely on the radical side.

        • BelieversAreDelusional says:

          Yeah I’m for equal rights and treatment under the law, since that doesn’t support your bigotry, I can see how you’d call me a radical.

        • MGM46 says:

          You may do anything you wish as far as I am concerned. Just stay away from me with it.

  2. TheChristianSolution says:

    In a way, you can see his argument. Sovereign citizens cannot be commanded by the government, but a government official can be commanded to perform his duties to the people. (A wrong evil duty in this case)

    It seems to me that a government official has few of the Constitutional protections we have while performing his duties. The Constitution was not created for him – the government official — it was created for us – to defend us from him.

    But my question is, “Who or what is going to defend us from the Supreme Court?”  One more Jewish appointment to the Supreme Court will mark the 5th Jewish appointment in a row by Democrats and place Jews in total control of the Supreme Court.  You were worried about defending your Christianity before!!!!  Just wait!!

    • BOTK says:

      Please take your anti-Semitism somewhere else. Jews are not the Big Evil.

      “Sovereign citizens cannot be commanded by the government”

      So in other words, government cannot enforce the law? In other words, the rule of law is replaced by the rule of the individual? The law is there to limit both the individual and the government. If the law does not limit the individual along with the government, the only result is anarchy.

      • TheChristianSolution says:

        the rule of law is replaced by the rule of the individual?

        Correction :  I did not mean to say just “law”, I was thinking “federal law”. Sorry if the context of what I was speaking was not clear.

        But, not at all is the rule of law replaced. Laws are written with the permission of the Constitution in Article 1, Section 8. Laws that concur with the Constitution are the rule of the People, not the rule of a bureaucrat.

        In this case, The Defense of Marriage is the law of the People. Government officials are required to follow this law and this government official can be forced to enforce the law which disallows him to marry anyone other than one man and one woman.  In fact, I don’t see where the Constitution gives the federal government power to marry anybody or the power to be a party to any contract between two individuals.

        And, I should have emphasized “federal law”, as under the original Constitution, the federal government cannot command any individual directly. A federal bureaucrat cannot Constitutionally COMMAND how much water my toilet can have. They do use the commerce clause to regulate the flush amount that manufacturers of toilets can have and hence indirectly COMMAND how much water I use in my toilet, but they cannot stop me from making my own toilet flushing any amount of water I can afford on my water bill.

        It was always meant for State laws to limit the individual, never the federal government outside its tiny jurisdiction of forts, army bases, Washington DC and sorts.

        • BOTK says:

          “As under the original constitution, the federal government cannot command an individual directly.”

          Uhuh, right. Show me one proof of that. SCOTUS can hand down rulings on cases concerning ambassadors, individuals, businesses, and so on. Under the original constitution, individuals could sue their own state government for violating federal law or the constitution. However, thanks to the 11th Amendment, no individual can sue his own state in federal court. Federal officials have the power to arrest violators of federal law, such as counterfeiters, traitors, murderers of federal officials, tax evaders, and so on.

          The DOMA does not give the federal government any power to marry people. It only defines marriage as a union between a man and a woman and forbids any government recognition of other “marriages.”

          “It was always meant for State laws to limit the individual, never the
          federal government outside its tiny jurisdiction of forts, army bases,
          Washington DC and sorts.”

          Show me where. Nowhere in the constitution does it say that. And show me which one of the Founding Fathers believed so. Yeah, you’ll probably say “Jefferson!” But, wait, why should we accept Jefferson’s interpretation of the Constitution when he wasn’t even in the United States when the Constitution Convention was going on?

        • TheChristianSolution says:

          I simply look at Article 1, Section 8 and see little more than trifling sections which may apply under certain circumtances.

          Counterfeiting of coins and securities? Few people would attempt such a ridiculous thing.

          Patents?  I only wish!!! 

          The only one you could really point to would be the part about militias.

      • TheChristianSolution says:

        Jews are not the Big Evil

        Can you prove that?

        • BOTK says:

          Yes. However, since your screen name is “TheChristianSolution” you ought to know. The big evil is sin, disobedience to God. It’s not any specific group or person.

        • TheChristianSolution says:

          BINGO!  And who is the most disobedient to God? Could it be the ones he prepped for the Messiah, only to see some reject the Son?

        • BOTK says:

          Then expain why the Gospel was first preached to the Jews first.

        • TheChristianSolution says:

          Again, because they were the ones prepped for the Messiah; they were the ones on the look-out for the Messiah; they were the ones who were expected to wrap their arms around the Messiah.   And many did.  It is the few who did not is what is the cause of many of the sins in the world.  When you think about it, it’s all very Biblical — good vs the evil right under our nose.

        • BelieversAreDelusional says:

          Wow, racists, anti-Semites, conspiracy theorists, this place has it all!

        • MGM46 says:

           Some of us know the real evil.

        • BelieversAreDelusional says:

          Doubt it, since you’re probably referring to a belief inspired by your ancient story book.

        • MGM46 says:

          I will take my book over your thoughts any day.

        • BelieversAreDelusional says:

          Yes indeed MGM, you will lack any significant thought of your own until the day you die, as your thoughts are dictated by the book to which you cling so tightly.

        • MGM46 says:

          Are you telling us all your thoughts are original – you are in worse shape than I thought you were – pathetic.

        • Combat Seabee says:

          Yup, and it even has you!!!!!!

        • BelieversAreDelusional says:

          Yep, and good thing because this place needs a dose of dissent. This place is a bubble if I’ve ever seen one.

    • BelieversAreDelusional says:

      Do you think there’s some Jewish conspiracy? Or just happenstance?

      • TheChristianSolution says:

        Happenstance is where there is an equal probability that either of several possibilities occur. Conspiracy is where everything goes the way the conspirators want it to go.

        So yes, there is a conspiracy in the US, dating back to the 1880′s, but world-wide back to the 1848 Judeo-Communist Revolution.

  3. BOTK says:

    “The Losing Argument for the Defense of Marriage Act”

    Correction: “The Losing Argument of the Social Liberals Against Morality and the Rule of Law”

    • BelieversAreDelusional says:

      Being against gay marriage is the definition of immoral. Equal rights are a matter of morals, and you lack the proper morals.

      • BOTK says:

        Rights don’t come first and foremost. The law does. Second, you have a very skewed definition of “right” like all other libtards. A right is something God-given. It is not a license to do anything you want. And since rights are God-given AND God forbids homosexuality, therefore, there is no “right” to be gay (unless you use the original definition of the word gay).

        And you’re right to say that believers are delusional: believers of the religion of atheism are extremely deluded, thinking themselves half-apemen or to go even further back the evolutionary ancestry, bacteria from a primeval pond.

        • BelieversAreDelusional says:

          Yahweh also forbids eating shellfish, I take it you think all people who eat shellfish should not be allowed to get married?

          Atheism is the lack of belief in any deities. Calling atheism a religion is like calling bald a hair color, and not collecting stamps a hobby.

          As far as evolution goes, if you ignore the mountains of evidence that support evolution, or acknowledge the evidence and still fail to understand it, I really can’t help you there – you’ll just have to stay in ignorance and confusion.

        • BOTK says:

          God no longer forbids eating shellfish, Acts 10:9-16.

          “Atheism is the lack of belief in any deities.”

          Correction: atheism is saying that you don’t believe in a god. That doesn’t mean you don’t have one. Everybody has some sort of god that they worship. Your god could be anything, your wife, your money, yourself, your property, a celebrity, a politician, the government, a natural phenomenon, or something else.

          And show me the mountains of evidence that spontaneity can generate information such as DNA and a thinking mind like yours.

        • BelieversAreDelusional says:

          At least you’re learned enough to support your story-book based bigotry and your own indulgences, +1 there.

          The spontaneity is in reproduction, that’s 1 source of genetic mutation. Mutation + geological time scale + natural selection = me (and you).
          I get that you might have a hard time understanding what it’s like not to be religious. Not everyone is like you, not everyone worships a god or anything for that matter. Just because you can’t understand what it’s like to not worship something doesn’t mean that everyone worships something.

        • soupson10 says:

          GOD did not change the rule regarding food in Acts 10:9-16, HE was stating that Peter should not consider anyone who wants to come to Christ and GOD as unclean because they are Gentiles.
          To BOTK there are no mountains of evidence supporting evolution. 
          To Believers think about the word mutate and its ultimate end.  Your claims are delusional.  There is one truth for those who don’t know HIM, in the end HE will not know them either.
          Regarding the issue of gay marriage, this country must start standing up for what is right.  Not everything is OK.  As long as this nation continues to endorse immoral behavior we will also continue to see these disasters we have been seeing.  Have you noticed how few lives have been lost?  It is because there are still people in this nation will not give up on the righteous way. 
          What could possibly be the argument against righteousness?

        • jmirabil says:

          Athiests deify THEMSELVES, they are their own God with their “reason” and humanism as trusty allies in their fool’s journey.
          The fool says in his heart there is no God.

        • BelieversAreDelusional says:

          @ jmirabil – says one of your story books promoting belief in a god. Kind of self-serving, no?

        • MGM46 says:

           You have no understanding of Old Testament VS New or either you are intentionally being deceitful.

          Atheism is indeed a religion.

        • BelieversAreDelusional says:

          And I guess not playing football is a sport. Great logic you have there.

        • MGM46 says:

          You may deceive yourself with that baloney, but no one else buys it.

        • BelieversAreDelusional says:

          MGM, I can’t help it it basic logic eludes you.

        • MGM46 says:

          I am very thankful that your type of logic does elude me.

        • JBinGB says:

          Jeez, bad has to “like ” herself to get even one thumbs up. Telling huh?

        • Illinois says:

          You, indeed, are showing your ignorance simply by putting unfounded faith in a groundless and proveable lie, called evolution. 67% of Americans reject it and that number is UP from 62% just 5 years ago!  Even school children of young age have questioned their teachers about it, sensing that something is wrong.

        • BelieversAreDelusional says:

          You misunderstand “logic and evidence” for “faith.” Evolution is as strongly supported as the theory of gravitation.

      • MGM46 says:

        You have no understanding of morals

      • PainesGHOST says:

        Why is sit that the LEFT seems to be incapable of distinguishing between RIGHTS and PRIVILEGES.  Such as Health Care.  That is a Privilege, not a RIGHT.  Anything that requires a LICENSE is a PRIVILEGE by definition, not a RIGHT.  You don’t need any licenses to secure your freedoms, at least not until governments exceed their charters.  You DO, almost universally need a LICENSE if something is a controlled privilege, such as driving, flying an airplane, or marrying.

        Simply declaring a privilege to be a right does not make it so.

        As to your comment about “equal rights”:  My 60 years of living have shown me that Gays do not simply want “equal rights” so much as they want special license or privilege.  And they already get it.  Case in point is AIDS and the fact that EVERY sexually transmitted disease EVER has been required to be reported by physicians, and sexual history taken in order to stem the tide.  Because GAYS objected to this “profiling” early on after the initial outbreak, reporting and sexual history did not take place.  As a result, the U.S. has been plagued by this disease which has crossed into the straight population thanks to bi-sexual men, IV Drug users,  and those who engaged in risky behaviors, got infected, and donated blood or plasma.

        Initially Gays were against reporting because they didn’t want their sexual orientation made known publicly.  Now gays and their militant LGBT organizations are engaged in an active, DECLARED war against Christianity and any religious system that would dare to tell them that they are violating GODs LAW.  To the point that in some nations, and soon to come in America, Gays have been so poilitcally successful that it will soon be a federal hate crime to simply state that homosexuality is condemned in the Bible.

        As Jill commented some while back, check your history.  EVERY NATION that every gave in to the homosexual agenda and assault on their MORALS (speaking of which) has decayed socially, politically, and economically until they end in RUINS

        Nice twist on the MORALS thing though

        Love in all things, especially when battling EVIL

        • BelieversAreDelusional says:

          The right here is not the right to marriage, no. The right is to equal treatment under the law. 

          If we accept that marriage is a privilege even for straight people, then we can see how the argument about equal rights obviously doesn’t apply to gay people wanting to get married. But if we accept that people should have a right to be treated equally under the law, there’s no justification for allowing gay people not to get married in the same exact way (not civil unions) that straight people can. 

          This, of course, has absolutely nothing to do with the church, considering one need not involve a church to get a marriage license.

        • BelieversAreDelusional says:

          not allowing gay people to get married*

  4. jong says:

    Fascinating.   The argument in and of it self in null and void.  This is why.   The government has control over certain things such at taxes in congress, the President has certain duties ect.   Marriage is not one of those things that the government has any rights in .    It is Religion and what it dictates as faith and what God has to say not Ceasar.  So get out.   The HOLY BIBLE which is the text that this country was founded on and the only text that this can be judged on and it says to kill homosexuals on discovery.  So the court unless it uses the Bible to examine this question has no standing.   The only people that would have it would be a council of ministers that are faithful to the word of God.  

    • BelieversAreDelusional says:

      Treaty of Tripoly, law of the land since June 1797, written by our founding father John Adams:

      “As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],—and as the said States never entered into any war or act of hostility against any Mahometan [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”But what did John Adams know about the founding of this country?

    • tsfreedom says:

      The Bible has to be taken as a whole– not part of it taken out of context. It is true that God in the OT did not have much patience with homosexuality.  Look at how Jesus interacted with people in the NT and how in the Book of Romans homosexuality is described. Obviously, people should not go around killing other people because they don’t like their life choices. Jesus already died for them! He paid the penalty of death already, once for all.  Forgivenss of sin is a free gift from God.

      No one should be killing anyone for this sin, although it is serious and the homosexual movement can be quite militant at times.  Although I don’t like it, what they do with their life is their business.  They should not try to force it on the rest of us as normal and they should not have special protections.  That is not okay.  People are free to make their own choices, but people don’t have to accept or approve of that choice either.  Let the free market place of ideas fall as they may. 

      No one should be coercing, threating, or killing anyone because they don’t like someone’s ideas, beliefs, or any other differences that people have from one another.

  5. Eddie B says:

    Perhaps the most poignant and beautiful sight a person can view…..a mother,a father and a child.

    • Breezeyguy says:

      What nutcase wrote this article?  DOMA didn’t create marriage.  America didn’t create marriage.  No State created marriage.

      Marriage was created by God to unite a Mother and father to the Children which result from that marriage.  It is written into our nature.  To try to re-define marriage is an offense against the RIGHTs of the child to their true parents.

      That’s why Libertarians need to support true marriage, and stop with the stupid laissez faire “who cares where the binky goes” attitude.  IT’S NATURAL LAW STUPID.

      The legitimate state is required to acknowledge and defend the existence of natural marriage, and to secure and defend the right of a child to both his parents.

      • Jared Myers says:

        “The legitimate state is required to acknowledge and defend the existence
        of natural marriage, and to secure and defend the right of a child to
        both his parents.”

        Somewhat disagree. The state is obligated to defend natural rights (not necessarily natural law, only to the point where natural law and natural rights overlap). Nowhere in Scripture (assuming you’re a Christian like I am) was the authority to regulate and define marriage given over to secular authority, and as a Christian I can never accept civil government’s “authority” (because they have none) over the marriage ceremony. The enforcement of the natural law (in this scenario) belongs solely with the Church Universal.
        I see it in 3 steps:
        1) The only reason civil government exists at all is to secure, protect, and defend the natural rights of its people.
        2) Marriage is a privilege, not a right
        3) Nowhere in Scripture was the authority to enforce the Biblical definition of marriage given over to non-Covenantal civil government (i.e., civil government under the New Covenant)

        ERGO: Marriage should be privatized, the sooner the better.

        • Breezeyguy says:

          Hi Jared:
          I think you are missing the point that man-woman marriage exists to connect parents to the resulting children.  Children have a right to both their parents, and as you outline in 1, the govenrment should protect that right.  This means that the government needs to respect the man-woman nature of marriage,and not try to redefine it.

  6. Jill says:

    Oh come on. Man and women fit together perfectly. The other way is EXIT ONLY.  When a society starts celebrating homosexuality they ALWAYS go down. Read history. If you got a problem go to a shrink. It is unnatural and you know it.

    • BelieversAreDelusional says:

      Natural = happens in nature. It happens in nature. Homosexuality is de facto natural.

  7. Jill says:

    Gays say they are born that way. I say everyone is born into sin.

    • BelieversAreDelusional says:

      Original sin is a detestable idea.

      • PainesGHOST says:

        While I completely disagree with your premise, as evinced by your handle, I do agree with your statement.  I suspect that this mis-application of the scripture is one of the reasons that non-believers use to explain their unbelief.  A supposed religion that worships a God of Love doesn’t stand scrutiny if it declares that all of mankind will be punished for the mis-deed of our first progenitor.  Nor does a “Christianity” that declares that children who die without baptism and those who lived and died without ever hearing the name of Jesus are condemned to hell. 

        What is true is that everyone is born into a world in which sin is rampant, and in which the temptation to sin is going to get to every one of us in some way or another.  That is the only way that we are born into sin.  Men and women will be punished for their own sins, and not for Adam’s transgression.  If God is a sensible, rational, loving and merciful being, which is what Jesus taught, He is not punish those who have done no wrong.

        Little children are not capable of sin until they reach an age (a mental/emotional age) where they can understand right and wrong and are accountable for their actions.  Any religion that will tell a grieving parent that their innocent child is to be consigned to hell is in and of itself a false religion.  What a hateful thing to teach, and to tell family who have lost a child.

        I can’t blame you for believing that Christianity makes little sense.  Most of “Christianity” extant in the world today is clearly apostate, completely adrift from the teachings of Jesus as recorded in the Bible.  So much of Christianity today is an empty vessel, generally in decay as more and more depart the rotting husk.  As prophesied, they draw near to God with their lips, having a FORM of Godliness, but denying the power thereof.  Most of purported Christianity denies that there has been or ever again will be ANY communication from God since the Apostles in spite of Jesus’ own declaration that is is by REVELATION that the CHURCH was always to be guided.

        Please don’t judge ALL of Christianity by the majority that is apostate.  Please keep your mind open.

        Love to ALL,

        • BelieversAreDelusional says:

          I do my best not to judge all of any group by the actions of those who would include themselves in said group. I may be a jerk when it comes to posting comments on the internet, but in many other ways I pride myself on acting Christian, even though I reject all of the supernatural beliefs.

          Thanks for the thought out response.

        • Jared Myers says:

          “… even though I reject all of the supernatural beliefs”

          Which, by necessity, means that you reject the laws of logic, morality, and nature.

        • BelieversAreDelusional says:

          What in the world are you talking about? Rejecting the supernatural means I reject the natural?

  8. ronpowell says:

    They are homosexuals, not gays. Why ruin a good word like gay by associating it with homos? If it is an inborn trait, how do you explain the ones that give it up and marry the opposite sex? Remember Ellen DeGeneres former partner, Heidi, who is now married and the mother of a child? No, the truth is it is a mental illness similar to liberlism and difficult to cure. It would be better to euthanize themand put them out of their misery. Brad Nova is a prime example.

    • BelieversAreDelusional says:

      You sound like a Nazi suggesting that gay people should be killed for being gay. How do you live with yourself being such a horrible person?

  9. Josephparisi1054 says:

    When did this site become pro-gay??

  10. Jared Myers says:

    I am a devout Christian (a Southern Baptist who holds to the 1689 London Baptist Confession of Faith, to be precise), and I believe quite strongly that civil government (of any kind) has NO AUTHORITY WHATSOEVER over the institution of marriage. Legalizing gay marriage or keeping the status quo is NOT the answer — the marriage ceremony must be privatized completely if we are to be in keeping with the Biblical model and the model closest suited for a federated republican form of government under the Constitution.

  11. Breezeyguy says:

    By the way, at the time it was implemented, DOMA was precisely an attempt to cushion states from the crazy ideas (SSM  = same sex “marriage”) of other states.  We didn’t worry about Massachussets because DOMA allegedly protected us from it.  It was a truly classic divide-and-conquer first step.  The dems loved it because it was precisely a trojan horse while the Repubs liked it because it seemed conservative.

    Now that a few States have legalized SSM, then somehow DOMA is illegal and we all need to be as crazy as the craziest States.  (Or rather, the States which didn’t have the staying power or apparatus to resist the ACLU and the activist courts).  I say, if DOMA is illegal, then Massachussets and the other few states need to CHANGE THEIR LAWS BACK.   Obama should be impeached for refusing to uphold the law.  His refusal was not on a case-by-case basis as dictated by resources etc etc, but an outright announcement that he would not uphold the law!