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?
When discussing the recent news that the White House and the Justice Department will no longer be defending the Defense of Marriage Act, we might ask ourselves if our reaction would be any different if they made that announcement regarding Roe v. Wade. In some ways these are the twin opposites on legislative morality.
Probably a majority of the population support heterosexual marriage and are somewhat uncomfortable about the social change, if not the moral shift, that gay marriage represents. Probably a majority of the population hold that the individual, not the state, should hold the trump card on decisions about something as important as abortion—even as many find the practice problematic.
Why is one to be protected by law and the other to be prevented by law? Is it the majority view that makes the law “right"? Or is it reasonable to enshrine a religious viewpoint in law and apply it to those that do not share that viewpoint?
One would have to be a right wing radio host to hold to the idea that the Obama administration has sailed before the wind on this issue—until now. We have seen a certain coy libertarian stance. And this recent development is probably less an ideological punt than a dare to the fairly conservative Supreme Court to decide.
We do not live in the world of Candide—it is not the best of all possible worlds. If Christian morality truly permeated the public mind we would not have let marriage fall to the likes of Gaga and Taylor, we would not have found rights for the avant-garde of unfettered sensuality, which led pretty deliberately to hooking up, gay raves and the S&M theme even to be found in children’s TV programs. To try to legally short circuit all this with a pre-emptive Act, no matter how high minded, is probably more destructive to the social compact than it might even be to a Constitutional test.
The abortion issue, similarly, has ridden to both prominence and practice on the back of social change. The self was elevated above the group and the group rights above the moral norms. However the answer to this lies not in a lightening bolt fro a legislative Sinai, but in a reversal of the changes that led to the demand in the first place.
“No compulsion in religion,” is a good mantra, as easily adopted to social matters beyond simple crimes—“no compulsion in matters of conscience.”
Author: Lincoln E. Steed
Editor, Liberty Magazine
Lincoln E. Steed is the editor of Liberty magazine, a 200,000 circulation religious liberty journal which is distributed to political leaders, judiciary, lawyers and other thought leaders in North America. He is additionally the host of the weekly 3ABN television show "The Liberty Insider," and the radio program "Lifequest Liberty."