The Judiciary Committee of the United States Senate held a vote Thursday on a bill that would repeal the federal Defense of Marriage Act. The vote for repeal was 10-8, with all of the Democrats on the Committee voting for repeal. As Senator Jeff Sessions noted, a vote in the full Senate is unlikely because repealing DOMA is an unpopular position .
Advocates of redefining marriage to include same-sex couples have had DOMA in their sights for some time. They know that most Americans still understand marriage is the union of a man and a woman and that redefining it will inevitably lead to rejecting the truth that children need a mother and father. This political reality makes repeal unlikely. Thus, the vote is probably explainable as a political relations move meant to satisfy the cultural left. It has, perhaps, the unintended, positive result of telling pro-family citizens which legislators support a radical redefinition of marriage.
The real action on DOMA, however, is elsewhere—in the courts. Advocates of same-sex marriage waited until they had a sympathetic presidential administration to begin bringing lawsuits to have DOMA’s definition of marriage as the union of a man and a woman declared unconstitutional. When capable attorneys initially made an appropriate defense of the law, gay rights groups were furious and demanded the Department of Justice chance course. The DOJ did, offering only a very weak defense of DOMA. Then, after a federal trial court ruled DOMA was unconstitutional and that decision was being appealed to the U.S. Court of Appeals for the First Circuit, the attorney general announced (contrary to legal precedent that the administration’s official position was that DOMA was unconstitutional. Thus, he explained, the Administration would no longer defend DOMA. This seems to have been a clear attempt to throw the case but the U.S. House of Representatives stepped forward to defend the law and hired and excellent law firm which is now providing a robust and professional defense of DOMA.
Contrary to the apparent opinion of Judiciary Committee Democrats and their allies in the legal profession, this is not the time to abandon the Defense of Marriage Act. There are four reasons why DOMA is still an important cornerstone of the family policy of the nation.
First, DOMA provides an important statement of the family policy of the United States. The 1996 House Report on DOMA notes this purpose of “defending and nurturing the institution of traditional, heterosexual marriage.” The report explains: “Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship. But, because America, like nearly every known human society, is
Second, because redefining marriage will inevitably create conflicts between the law and religious liberty, DOMA’s definition of marriage is an important bulwark in protecting this right. The logic of “marriage equality” is that there can be no relevant differences between same and opposite-sex couples. Those who believe, for reasons of their faith or for any other reason, that children need a mother and father and that the unique relationship between a man and a woman is the only appropriate setting for sexual relationships must be treated as the equivalent to racial bigotry.
Third, DOMA provides that states will not be forced to recognize same-sex marriages contracted in another state. This is an important protection of federalism and of pluralism among the states.
Fourth, federal laws that reference marriage were enacted on the understanding that marriage retained its ordinary meaning of the union of a man and a woman. If state laws to the contrary are used to determine how federal taxpayer money is spent, this would frustrate the intent of legislators and citizens in passing the laws mentioning marriage.
While it is unlikely the Senate will vote on the DOMA repeal, Senators (and their constituents) must hold firm against the attempts to subvert the nation’s sound marriage policy.