No Justice for Marriage

No Justice for Marriage

By Maggie Gallagher - August 20, 2009

Why has President Obama's Justice Department abruptly attempted to sabotage the Defense of Marriage Act (DOMA) in federal court?

Justice is supposed to be blind. When Congress passed DOMA in 1996 with overwhelming bipartisan support, its reasons for doing so were made crystal clear:

"At bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing."

This is not some kind of weird side argument drummed up by folks who don't like gay people. It has been at the heart of America's marriage tradition since the dawn of the Republic.

Dozens of courts have ruled that procreation is a key purpose of marriage -- long before anyone could have imagined animus toward gay marriage was driving these words. For example: Heup v. Heup (1969), "Having children is a primary purpose of marriage"; Zoglio v. Zoglio (1960), "One of the primary purposes of matrimony is procreation"; Stegienko v. Stegienko (1940), "Procreation of children is one of the important ends of matrimony."

A New Jersey court in 1921 stated:

"Lord Penzance has observed that the procreation of children is one of the ends of marriage. I do not hesitate to say that it is the most important object of matrimony, for without it the human race itself would perish from the earth."

More recently, state supreme courts -- including those in New York, Washington and Maryland -- have agreed: Marriage is not discrimination because unions of husband and wife really are different, and they serve the government interest in promoting responsible procreation in a unique way.

Why does this new Obama Justice Department's attack on the purposes of DOMA matter? Because DOMA is the one federal law that protects the definition of marriage as the union of one husband with one wife. It prevents a handful of state judges or legislators in very liberal states from forcing taxpayers across the country to subsidize same-sex couples as if they were marriages. And it also guarantees that no state will be required to recognize gay marriages performed in other states.

Yet for political reasons, President Obama's Justice Department this week specifically and unequivocally repudiated the main reason for government involvement in marriage, even as it purported to defend DOMA on other grounds. In order to get the Obama administration out of a political jam, the government of the United States, speaking on behalf of you and me, has just told a federal court of law: "The government does not contend that there are legitimate government interests in 'creating a legal structure that promotes the raising of children by both of their biological parents' or that the government's interest in 'responsible procreation' justifies Congress's decision to define marriage as a union between one man and one woman."

Why not? Because, the brief continues, the American Psychological Association has concluded that gay people can be good parents.

Surely there are other ways for those who advocate gay parenting to promote their views without attacking the very idea of the natural family, of the duties of natural parents, or the stubbornly retrograde longing of children to know and be known by, to love and be loved by the mother and father who made them, when possible.

But sadly, a loud interest group that helped fund President Obama's victory succeeded this week by belligerent protests in gaining a key shift in Justice Department legal arguments. The blatantness of this advocacy pressure will not, I hope, escape the Supreme Court's notice if this case proceeds. President Obama is sabotaging DOMA while pretending to defend it in court, in order to please a core political interest group that donated money to support his campaign.

Politics is not supposed to drive justice (and Justice) like this.

(Maggie Gallagher is president of the National Organization for Marriage and has been a syndicated columnist for 14 years.)

Copyright 2009, Maggie Gallagher

Don't Govern on Fantasies
E.J. Dionne · November 10, 2014

Maggie Gallagher

Author Archive

Follow Real Clear Politics

Latest On Twitter