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Response from Michael D. Peabody

Discussion Question: Defense of Marriage Act Unconstitutional?

President Barack Obama recently ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which defines marriage as only between a man and woman. “Classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," said Attorney General Eric Holder, and the key provisions in the law "fails to meet that standard and is therefore unconstitutional." Do you agree with the administration that the act is unconstitutional (why or why not), and what, if any, implications may this have for religious liberty?


During the brief window between the California Supreme Court’s decision finding a ban on same-sex marriage in violation of the California Constitution on May 15, 2008, and the ballot-initiative amending said constitution on November 5, 2008, Arthur Smelt and Christopher Hammer got married.

While same-sex marriages during this window period have been recognized in California since they were presumably “constitutional,” the newlyweds filed a case against the federal government in state court that was transferred upon motion of the federal government into federal court alleging that “the refusal of all states and jurisdictions” to recognize the validity of their marriage resulted in the denial of their marriage status by other states, and federal rights and benefits that other married couples received so long as they were of the opposite sex.

Under Section 2 of the Defense of Marriage Act (“DOMA”), signed into law by President Clinton in 1996, states were permitted to decide whether to acknowledge same-sex marriages performed in other states. Section 3 of DOMA required that federal benefits would only be conferred to opposite-sex couples regardless of whether the states in which they resided recognized same-sex marriage. At the time that DOMA was passed, no states recognized same-sex marriage although it was certainly an issue on the horizon.

Smelt and Hammer claimed DOMA violated various constitutional provisions including the Full Faith and Credit Clause, the Due Process Clause of the Fifth Amendment (i.e. the equal protection clause), and free speech rights.

In August 2009, the Obama administration came to the defense of DOMA, and made a sweeping argument in a sweeping 54-page Motion to Dismiss that not only argued the jurisdictional issue, that the federal government cannot be sued in state court. The Obama Department of Justice also argued that DOMA was “rationally related to legitimate governmental interests,” and “simply preserved longstanding federal and state policies that have afforded protections and privileges to a traditional form of marriage, while simultaneously recognizing the right of States to extend such protections and privileges to same-sex marriage.” The brief also recognized that the Supreme Court had legalized consensual, adult homosexual activity in Lawrence v. Texas (2003) while avoiding the question of whether the government must give “formal recognition to any relationship that homosexual persons seek to enter.”

The brief also invoked a parade of horribles in order to uphold DOMA:

“The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State's policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state"); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void").”

The brief also argued that DOMA saved the government “scarce resources” by not extending benefits to same-sex couples, that homosexuals had no constitutional right to marry, and that Congress could address same-sex marriage because same-sex couples do not deserve the same level of judicial scrutiny in court that other minorities get when receiving benefits. The brief argued DOMA must be analyzed under the rational-basis standard where the “court may not act as a super legislature, sitting in judgment on the wisdom or morality of a legislative policy. Instead, a legislative policy must be upheld so long as there is any reasonably conceivable set of facts that could provide a rational basis for it, including ones that Congress itself did not advance or consider.” So, while a state could recognize same-sex marriage, same-sex married couples could not receive federal benefits as if they were married. (It is noted that the application of the rational-basis test is what effectively sunk the Free Exercise Clause in the Employment Division v. Smith case.

The Obama administration summarized its position in 2009 as follows, “In short, therefore, DOMA, understood for what it actually does, infringes on no one’s rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny.” The brief further argued that whereas interracial marriage bans were “designed to maintain White Supremacy,” and were therefore unconstitutional in Loving v. Virginia (1967), DOMA had not been written to advance either racial or gender superiority since in gay marriage both parties are of the same gender.

On August 24, 2009, United States District Judge David O. Carter weighed the positions of the same-sex couple and the United States government and threw the case out on a completely procedural issue. That pursuant to the Federal Rules of Civil Procedure, section 12(b)(6), the couple had not filed a claim upon which relief could be granted. Specifically, Judge Carter avoided addressing situations of incest and statutory rape raised by the Obama administration in defense of DOMA and ruled that the couple could not sue the federal government in state court, and that there was no jurisdiction to proceed.

Needless to say, the Obama administration’s defense of DOMA, which incidentally ran contrary to Obama’s campaign promises on the issue, raised the ire of many, not only as a paean to religious right ideology but due to the concept that “rights” could be defined away. Last week, the Obama administration stated that it would no longer defend Section 3 of DOMA in Federal Court. Given the fact that it had not won its argument on these issues, and that Congress can, if it so decides, pick up the fight and promote DOMA in court, it seems that the administration made a safe decision.

Arguing against same-sex marriage in a legal manner in the courts is very difficult, as seen in the Proposition 8 Federal trial in California where opponents of the ban presented 8 witnesses and the proponents presented only 2, both of whom had previously publicly stated arguments in opposition to their testimony on the stand. Further, and more importantly, bans on same-sex marriage are difficult to defend without sucking other rights into the vortex.

How far can the government go in determining whose rights are defended? Does it stop at matters of sexual orientation which people claim is established at birth, or in the case of religious converts whose newly-found convictions prohibit them from otherwise required job duties?

Regardless of what one thinks about same-sex marriage in either the religious or the secular context, we would do well to be cautious when it comes to narrowly defining which American citizens receive which rights. Likewise, churches and religious institutions should be free to continue to preach and teach as they have, and should be able to choose which couples to marry. Governmental action in either direction should not affect the rights of religious organizations.

At a campmeeting in 1889, Seventh-day Adventist pioneer religious liberty leader Alonzo T. Jones said, “"The time has come for us to assert the right of others to believe as they please, and to assert it at all times and places. If you or I sit idly down and see another's rights invaded and taken away, and do nothing, because it does not harm us we will have no right to complain when ours are invaded....The question is not who is right, but what are the individual rights."

So is the Obama administration correct in effectively stepping out of the DOMA arena? That remains to be seen, but if the Obama administration were to continue defend DOMA, it should rework its approach so as to avoid the vast collateral damage which could arise from the arguments raised when it previously supported DOMA.

Photo of Michael D. Peabody

Author: Michael D. Peabody

Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”

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