Marriage and the Reign of Judges
by Matthew J. Franck
The latest decision from our judicial overlords on same-sex marriage spells trouble for republican constitutionalism and the institution of marriage.
The Defense of Marriage Act (DOMA) was grounded on a fear of judges run amok. This past Thursday, federal district court judge Joseph Tauro of Boston justified this fear when he struck down section 3 of the act in two separate cases, Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services (HHS). In the Gill case, Judge Tauro held that the law unjustly denied various federal benefits to spouses in same-sex marriages contracted under Massachusetts law, contrary to the equal protection principle. Meanwhile, in the HHS case, Tauro ruled that the state itself was the victim of an unconstitutional intrusion by the federal government on its reserved powers under the Tenth Amendment.
In both cases the judge claimed to be basing his ruling on the “historically entrenched practice” of federal law recognizing marital status whenever it was accorded under state law. But we can hardly credit his attachment to “historically entrenched practice” when he is willing to treat the whole moral tradition of human civilization, with its exclusive recognition of marriage as a union of opposite sexes, as “irrational” and thus fit for the dustbin.
DOMA cannot be properly understood outside its historic context. Congress passed DOMA, a statute that is as simple as it is brief (consisting of barely more than 350 words), to prevent this judicial tyranny. DOMA did just two things: in section 2 it permitted states to deny recognition to any “relationship between persons of the same sex that is treated as a marriage under the laws” of another state; and in section 3 it defined “marriage” for purposes of all federal laws and regulations to be “only a legal union between one man and one woman as husband and wife.”
Neither section took any notice of which state institutions might be responsible for introducing the recognition of same-sex marriage. But the law as a whole was a response to the looming threat, by then already met and rebuffed in Hawaii, of judges imposing the agenda of same-sex marriage on the country, state by state. Indeed, in the event that democratic action caused same-sex marriage to become widely accepted, and recognized in the law in most of the states, one might expect DOMA to be repealed in its entirety. But that would be for Congress to do, following the actions of other elected legislatures at the state level. And in 1996, when DOMA was passed, no state legislature had seen fit to upend the entire meaning and history of marriage by fabricating the fraud of permitting persons of the same sex to “marry.” In the fourteen years since DOMA’s passage, only one legislature (New Hampshire’s) has acted to authorize such marriages entirely on its own, while another (Vermont’s) did so only after being pushed as far as same-sex ‘civil unions’ by its state’s judiciary. And in every state in which the question of permitting same-sex marriage has been put directly before the people, it has been rejected by popular majorities, in most cases acting in their sovereign capacity as constitutional lawgivers. The sine qua non of same-sex marriage in the United States has been the tyranny of the American judiciary, while republican constitutionalism has been fighting a rearguard action.
One of Judge Tauro’s defenders might say that since it has already been decided that same-sex marriages may take place in Massachusetts, the only question before Tauro’s court was whether the federal government could decline to treat same-sex couples as married when the state has so treated them. “The authority of the Commonwealth,” after all, has “recognized same-sex marriages among its residents,” he noted. But what “authority” worked this recognition in Massachusetts? Why, its judiciary, of course, which has infamously frustrated the operations of democracy at every turn.