DOMA

In an interview on The Janet Mefferd Show yesterday, Eagle Forum founder Phyllis Schlafly attacked Sen. Rob Portman’s newfound support for legalizing same-sex marriage, calling his announcement “dumb” and a “stupid statement.” Schlafly, who unlike Portman has maintained her opposition to marriage equality even after learning that she has a gay son, said that Ohio voters may “feel sorry for him” because “maybe he was pressured by his son to do this.”

She insisted that the Defense of Marriage Act (DOMA) “does not proscribe a national rule against gay rights” and protects states’ rights.

However, Section 3 of DOMA requires the federal government to discriminate against legally married same-sex couples. Even the American Family Association’s legal counsel admits that Section 2, which allows states to refuse to recognize same-sex unions that are legal in other states, likely violates the Constitution’s Full Faith and Credit Clause.

Mefferd: What do you make of Sen. Portman’s announcement last week?

Schlafly: I think it was a rather stupid statement that he made. He doesn’t appear to understand what DOMA is all about. His statement is not in accord with the facts and it’s inconsistent. If he stands up for states to be able to make their own decisions about marriage, DOMA allows that, we have about a half a dozen states that have made that unfortunate decision and they’re not interfered with by DOMA. I don’t understand. Portman was always advertised as one of the brightest of the Senators and he doesn’t seem to understand that the Defense of Marriage Act does not proscribe a national rule against gay rights; it doesn’t do that at all. It just says if one state adopts same-sex marriage the other states simply do not have to recognize it. What can be more states’ rights than that?

…

Mefferd: That shouldn’t be the way people shift positions as far as public policy is X is happening in my family therefore I’ve changed my mind completely for the entire country.

Schlafly: I agree with you and I think it’s really a dumb way to create legislation and my guess is that the Ohio voters will take care of that in the next election; I think they won’t respond to that type of an argument. They’ll feel sorry for him, maybe he was pressured by his son to do this, but I think the legislators should stand up for what the majority of people want and not decided based on personal experience.

In an interview with the American Family Association’s news affiliate Instant Analysis (formerly OneNewsNow), Peter LaBarbera of Americans For Truth About Homosexuality condemned the large group of corporations that joined legal briefs asking the Supreme Court to overturn the Defense of Marriage Act (DOMA) and Proposition 8.

LaBarbera blasted the corporations for “pushing homosexuality on the American public,” calling the amicus brief “a tool of repression against Christians and people of faith who simply want their right to not support homosexuality.” He claimed that if the Supreme Court rules against Prop 8, “that will be a sad day for American freedom” and “a disaster,” as deciding who should have the freedom to marry “should be left up to citizens.”

Peter LaBarbera of Americans for Truth About Homosexuality acknowledges that corporations are at liberty to do what they want privately, such as adopting pro-homosexual policies.

“... But when you start pushing homosexuality on the American public using the government, that's another matter,” he offers. “Then it becomes a tool of repression against Christians and people of faith who simply want their right to not support homosexuality.”

According to the family advocate, the Prop. 8 case before the nation's high court is essentially the “Roe v. Wade” of the homosexual movement.

“If the court steps in and overrides the decision of the people of California not to support homosexual so-called marriage, that will be a sad day for American freedom,” he tells American Family News. “All across the nation citizens have spoken on this issue – [and] at the very least it should be left up to citizens.

“If the court imposes national homosexual marriage, that will be a disaster – and it will fuel the culture wars for decades to come.”

Of course, it is absurd to argue that a Supreme Court decision against DOMA or Prop 8 actively represses or takes away the rights of marriage equality opponents. But the Religious Right is often inconsistent in its arguments. Another AFA news item, however, explicitly rejects paying any attention to how the public feels, contradicting LaBarbera’s argument.

Sam Rohrer, a former Republican lawmaker in Pennsylvania and head of the Pennsylvania Pastors’ Network, tells the AFA that the public’s view on marriage equality doesn’t matter because judges should rule according to “moral law” established by God as “the base of the Constitution and the individual rights guaranteed by it are based on the Bible.”

The Christian Post reported on Monday that The Washington Post has published two polls that show "Americans are done with DOMA." But the Pennsylvania Pastors' Network (PPN) contends that the results are "likely skewed."

PPN president Sam Rohrer believes that polls are worth about the amount it cost to conduct them - particularly when they are financed by organizations that advocate for the destruction of marriage, including the Respect for Marriage Coalition.

"When they use polls to try to substantiate and/or to prove an acceptance of a position that has not been historically sound, I'm saying [that] is an inappropriate use of polls," Rohrer submits. "And any judge that looks to the poll as a determination of how they may or may not judge and rule on this case is to embrace moral relativism rather than moral law."

That is especially relevant now, as the U.S. Supreme Court is to hear arguments on the constitutionality of the Defense of Marriage Act next month; the resulting ruling is expected near the end of June.

The Coalition's poll results show that 83 percent of Americans, "regardless of their personal opinion on the issue," believes same-sex "marriage" will be legal nationally "in the next five to ten years." But that can only happen if the federal Defense of Marriage Act is repealed by the Supreme Court or Congress.

And a national survey conducted on behalf of the Center for American Progress (CAP) and Gay & Lesbian Advocates and Defenders (GLAD) reportedly reveals that 59 percent of registered voters "oppose" Section 3 of DOMA, which defines marriage as between one man and one woman and a spouse as someone of the opposite gender.

The PPN president asserts that the purpose of the recent polls is to influence public opinion and the courts.

"What the Pastors' Network is saying is that when making a decision, a moral decision where you're talking about an institution created by God, God doesn't need public opinion polls; so neither should a judge consider what polls may or may not be," Rohrer contends. "It's a moral decision, and moral decisions ought to be made based on what God says -- not what some poll may or may not say."

Part of the oath of office high court justices take is to support and defend the Constitution. And as Rohrer points out, the base of the Constitution and the individual rights guaranteed by it are based on the Bible -- not the popular view of the culture.

In reading through the amicus briefs submitted by anti-gay groups to the Supreme Court, we’ve been generally impressed by the relative restraint of their legal arguments compared to their day-to-day anti-gay tirades. But not so with the two briefs submitted last week by a hodgepodge coalition of conservative groups.

Citizens United’s National Committee for Family, Faith and Prayer filed two no-holds-barred amicus briefs last week, one in defense of Prop 8 [pdf] and one in defense of DOMA [pdf]. They were joined in both by the anti-immigrant groups Declaration Alliance and English First; WorldNetDaily affiliate the Western Center for Journalism; the Institute for Constitutional Values (founded by white supremacist ally Michael Peroutka, who also argues that the solution to school violence is to abolish schools); Gun Owners Foundation (the research wing of Gun Owners of America); the extremely and occasionally comically anti-gay Public Advocate; the birther group U.S. Justice Foundation; Protect Marriage Maryland and others. Far-right Virginia Del. Bob Marshall and Sen. Dick Black joined the DOMA brief. Both are signed by Michael Boos, general counsel of Citizens United, and by Herb Titus, an attorney with a sideline as a birther advocate.

So I guess we shouldn’t be surprised that the filings contain passages like this one, in the Prop 8 brief, arguing that laws against homosexuality affirm rather than deny the humanity of gay people:

Second, while the discrimination against Blacks in America denied them their rightful status as a member of the human race vis-à-vis their white counterparts, the discrimination against homosexuals affirmed their status as full and equal members of the human race. Indeed, the very definition of the “crime against nature,” was employed to emphasize that the sexual behavior condemned was contrary to the law of human nature. Homosexual behavior, then, while unnatural did not mean that those guilty of it were any less human.

Or this one from the DOMA brief arguing that gays and lesbians have not historically faced discrimination because some criminal sodomy laws also “extended to opposite sex unnatural couplings”:

As a class, homosexuals have not been discriminated against in the way that the court of appeals has so “easily” assumed. The appellate panel below concluded that “the most telling proof of animus and discrimination is that, for many years and in many states, homosexual conduct was criminal.” Yet historically, even the crime of sodomy was not so targeted. Rather, it was defined as “carnal copulation against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with a beast.” Thus, the crime of sodomy was “known in the common law by the convertible and equivalent name [] of ‘crime against nature,” the offense not only extended to opposite sex unnatural couplings, but was one of several sexual offenses that fit under the broad category of “offenses against the public health, safety, comfort and morals.” Among these sexual offenses were bigamy, adultery, fornication, lewdness and illicit cohabitation, incest, miscegenation, and seduction, all of which could be committed by persons of the opposite sex. Rather than a narrow negative purpose, these laws reflect a perceived concern for the public health, safety, comfort, and morals of certain sexual behaviors.

Or that the groups oh-so-cleverly invoke the court’s Obamacare decision to argue that the extra taxes same-sex spouses pay under DOMA are an acceptable way of “deterring certain activities”:

Additionally, this Court has consistently ruled that Congress’s power to tax is not limited to the purpose of raising revenue. Thus, this Court found that it is permissible for Congress to adopt a taxing policy for the purpose of deterring certain activities by the levying of a tax on them, as well as for the purpose of collecting revenue. Therefore, according to precedent, it is a constitutionally permissible exercise of Congress to adopt a tax policy for the purpose of nurturing traditional marriage as the ideal family structure for raising children, just as this Court has recently observed, that it is perfectly permissible for Congress to impose a tax “to encourage people to quit smoking” or “to shape decisions about whether to buy health insurance.”…It is not for the courts to second-guess whether Congress should promote a traditional family policy in the exercise of its taxing powers.

But what is truly remarkable about the Citizens United coalition’s legal arguments is their eagerness to burn all bridges and declare everything they come across unconstitutional. While the Family Research Council and Liberty Counsel, presumably trying to appeal to Justice Anthony Kennedy, hold their noses and accept Kennedy’s pro-gay rights opinions in Lawrence v. Texas and Romer v. Evans as law, Citizens United et al have no such scruples. Not only should Lawrence and Romer be overturned, this group argues, but so should Bolling v. Sharpe, the 1954 Brown v. Board companion case that desegregated the District of Columbia’s public schools. Bolling was the first decision in which the Supreme Court explicitly found an equal protection component in the Fifth Amendment’s Due Process Clause, thus setting the stage for six decades of prohibitions on discrimination by the federal government – all of which the coalition would like to see go.

But these groups don’t just go after decades of legal precedent. They also personally attack two judges who ruled against Prop 8 before it reached the Supreme Court, in particular district court judge Vaughn Walker, who is openly gay:

With the understanding of Judge Walker’s personal interest in the outcome of the case, it becomes much easier to understand his finding every fact for the plaintiffs and his willingness to impute ill will to the proponents of Proposition 8. For example, having in his personal life rejected 6,000 years of moral and religious teaching, we can see how Judge Walker could readily determine that California voters were motivated solely by “moral and religious views…that same-sex couples are different from opposite-sex couples [and] these interests do not provide a rational basis for supporting Proposition 8.” The same is true for Judge Walker’s conclusion that supporters’ motivations were: “fear,” “unarticulated dislike,” not “rational,” based on “animus toward gays and lesbians,” “irrational,” “without reason,” and “born of animus.” Petitioners were entitled to have their case heard by an impartial judge – not one who was leading a secret life engaging in behaviors which he appeared to believe were being unfairly judged and criticized by the proponents of Proposition 8.

(Citations omitted in block quotes)
 

The Family Research Council submitted two amicus briefs to the Supreme Court yesterday urging it to reject challenges to DOMA and to California’s Proposition 8. The briefs lay out some of the same arguments that we’ve heard many times from the FRC. But we were curious if the FRC would jettison one of its favorite talking points– the success of discriminatory measures at the ballot box –in light of last year’s resounding marriage equality victories in Maine, Maryland, Minnesota and Washington.

The answer was yes and no.

In its brief on Hollingsworth v. Perry, the Prop 8 case, the FRC goes back to the old talking point, ignoring the events of last November, to argue that “there is no ‘emerging awareness’ that the right to marry extends to same-sex couples.”

This Court has never stated or even implied that the federal right to marry extends to same-sex couples.  And, with the exception of the district court’s decision below, which was affirmed on other grounds by the court of appeals, no state or federal court has held that the fundamental right to marry extends to same-sex couples.  In sharp contrast to the “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” Lawrence, 539 U.S. at 572, which, in turn, was based upon an examination of “our laws and traditions in the past half century, id. at 571, “[t]he history and tradition of the last fifty years have not shown the definition of marriage to include a union of two people regardless of their sex.”  If anything, the fact that thirty States have amended their constitutions to reserve marriage to opposite-sex couples strongly suggests that there is no “emerging awareness” that the right to marry extends to same-sex couples.

But when the FRC wants to argue that gays and lesbians are not a “politically powerless” group deserving protection from discrimination, they flaunt the 2012 election results and point to how close previous anti-gay votes on state ballots were. This is from the brief on U.S. v. Windsor, the DOMA case:

Any lingering doubt that gays and lesbians are able to influence public policy, particularly with respect to the issue of same-sex marriage, should have been laid to rest by the results of the last election.  Three States – Maine, Maryland and Washington, by popular vote, approved laws allowing same-sex marriage, and in a fourth State – Minnesota – voters rejected an amendment to the state constitution that would have prohibited same-sex marriage.  Even in States where such amendments have been approved, the margin of victory has often been narrow, in some cases barely passing (as in California in 2008 and South Dakota in 2006), indicating that homosexuals, who comprise no more than one to two percent of the population, have succeeded in enlisting many heterosexuals to support their cause for same-sex marriage.  In such a dynamic social and cultural environment, the belief that homosexuals are “politically powerless in the sense that they have no ability to attract the attention of the lawmakers,”  strains credulity. 

So when voters reject gay rights at the ballot box, they are reflecting public opinion. But when they vote in favor of gay rights, they have been “enlisted” to the cause by powerful gay rights lobbyists.

Right-wing pseudo-historian David Barton, who compares homosexuality to smoking and celebrates the fact that there isn’t a cure for AIDS, said today on WallBuilders Live! with co-host Rick Green that same-sex marriage is much like letting people marry horses or dogs. Discussing the Defense of Marriage Act, Barton warned that marriage equality proponents may try to “evangelize” their belief that “marriage shouldn’t be between a man and a woman” since “that’s unfair for two men who want to be together, or two women, or a horse and a dog, or whatever it is.”

Barton: Other courts, other areas started saying ‘well you know we can’t really justify this position anymore, marriage shouldn’t be between a man and a woman, that’s unfair for two men who want to be together, or two women, or a horse and a dog, or whatever it is,’ so at that point as it looked like the states were starting to mess around the problem you have is the contracts in one state are supposed to be honored by another. So if I make a business contract with you in Texas and we move to Oklahoma, that contract is going to be recognized in Oklahoma. Well on marriage, that’s a contract. So if one state suddenly says we want same-sex marriage and in Texas we say we don’t, just because you got married in Vermont and moved to Texas doesn’t mean we have to recognize your contract.

So that ability of saying one contract is going to be forced on another caused Congress to act in 1996 and say look the federal government and the states both have to deal with marriage, now here’s what we’re doing, on the federal level we are telling you marriage is a man and a woman and everything that deals with marriage on the federal level is going to be considered a man and a woman. They said as far as the states, you states are not going to be bound by the marriage decision of another state. Green: You do it the way you want to do it and don’t expect to be able to export that to another state.

Barton: Don’t use that to try to evangelize the other forty-nine states.

Green: And we won’t let the other states force it on you.

Barton: That’s right.

Ed Meese, who served as attorney general under Ronald Reagan, told Barton and Green that the legalization of same-sex marriage in several states “just shows how the culture has deteriorated over two centuries,” and asserted that same-sex marriage is an attempt to “defy nature.”

Green: It’s almost like they are making it up on the fly, the actual language of the Constitution doesn’t matter; it’s what these judges that happen to be on the bench at the time think it should mean.

Meese: The founders, we go back to the founders, the reason that they didn’t put something in the Constitution to say that marriage is the union of a man and a woman is nobody would have even thought at that time that there could be any other. It just shows how the culture has deteriorated over two centuries.

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Green: You also mention that the Defense of Marriage Act should control what’s happening on the military side of things. How have they managed to push through so much with the military in the Obama administration on this issue working around DOMA?

Meese: Well that’s still an open issue and that’s why DOMA is very important. For example, whether chaplains should be required to participate in a homosexual marriage ceremony; whether that would be required as part of their duties, that’s where DOMA is a very important statute. This idea that somehow there is some obscure right in the Constitution to defy nature, as they do in homosexual marriage, is just ludicrous.

Today, yet another court ruled that the Defense Of Marriage Act (DOMA) is unconstitutional, this time finding that Section 3 of the law, which prevents the federal government from recognizing same-sex marriages in states where they are legal, fails the “rational basis test” as applied to laws that deny equal protection and harm a group long subject to discrimination. The unanimous ruling by the three judge panel of the First Circuit Court of Appeals, including two Republican nominees, found no “connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.”

Bruce Hausknecht of Focus on the Family’s CitizenLink criticized the court’s “unfortunate exercise of judicial tampering with the rules by which constitutional cases are decided,” and the Alliance Defense Fund’s Dale Schowengerdt said the decision permits states to “hold the federal government, and potentially other states, hostage to redefine marriage.”

Remarkably, Massachusetts Family Institute president Kris Mineau claimed that the First Circuit Court of Appeals shouldn’t have any federal power to rule on the case as “a Massachusetts-based court “…seemingly unaware that it is a federal court!

Kris Mineau, president of the Massachusetts Family Institute, argued Thursday that the ruling is "bizarre" for requiring the federal government to accept Massachusetts' definition of marriage, and violates the federal government's right to determine the application of federal benefits.

"For a Massachusetts-based court to just audaciously proclaim that the federal government is wrong and has to recognize a unique social experiment in Massachusetts for the purpose of providing benefits is bizarre and a violation of the principles of our federalist system," Mineau said, according to Reuters.

Judson Phillips of Tea Party Nation told members today that marriage equality for gays and lesbians is part of the “east coast liberal freak show” bent on ruining America:

Whether we like it or not, because the liberal states have enacted homosexual marriage, sooner or later the Supreme Court is going to say those marriages must be recognized by all fifty states.

While there are many religious and moral arguments that can be made about this, the simple fact is for the last sixty years or so; the left has been attacking the basic family unit. The end result of this has been the creation of poverty where none existed before. It has been the creation of an under class, born and raised in poverty, unlikely to escape poverty and encouraged to engage in the same behaviors that landed their parents in poverty.

Given the left’s track record in this area, they should not even be allowed to offer an opinion much less pass laws as they are doing in some of the east coast liberal freak show states.

Last week we reported that the Family Research Council asked members to pray against “homosexual tyranny” in America after the federal government agreed to have Blue Cross Blue Shield offer full benefits for a same-sex spouse of a federal employee after a judge ruled in favor of the employee in her lawsuit against the Defense of Marriage Act. Naturally, Americans For Truth About Homosexuality president Peter LaBarbera is demanding that Congress impeach President Obama as a result of his administration’s decision to grant her health benefits:

"This is another shocking act by the Obama administration, which has got to be the most arrogant and Constitution-abusing president in America's history," he decides. "The Obama administration didn't like the Defense of Marriage Act, which was passed by Congress [and] signed into law by then-President Clinton, and so now they're just ignoring it and blatantly disregarding it."

This particular case, however, is not over, as Republicans have appealed the district court's decision, which has no effect on enrollments requested by other same-sex couples. Even though the law is being challenged in court, LaBarbera says it is still the law.

"I believe that President Obama should be impeached on this alone," he suggests. "He's not dictator of the United States of America; he's president, and he can't just ignore the law, ignore the Constitution, to pander to his homosexual activist base."

After catching national notoriety for her claims that parents should not let gay doctors treat their children and companies should not hire gay employees, Linda Harvey has removed the archives page of her radio program from public viewing.

But that hasn’t stopped our efforts to monitor the Mission America leader.

Harvey today dedicated her radio alert to asking members to pray for preservation of the Defense of Marriage Act (DOMA). Like many Religious Right activists, Harvey warned that President Obama was working in defiance of the law to repeal DOMA and claimed that the Respect for Marriage Act, the DOMA repeal bill, is “insulting.” She went on to say that the repeal of Don’t Ask Don’t Tell, which she previously called “heartbreaking,” created a “homosexualized military” that is now one of the “many fronts of the enemies of the Truth of God [that] are launching attacks” against marriage.

Listen:

Yesterday, the Respect for Marriage Act, legislation that will repeal the discriminatory Defense of Marriage Act, passed out of the Senate Judiciary Committee on a 10-8 vote, naturally spurring outrage among Religious Right activists. The vote was not a surprise to conservative groups, who told activists to be ready to fight the bill on the floor of the Senate.

Focus on the Family’s political arm CitizenLink blasted the “ironically labeled the ‘Respect for Marriage Act’” and the Thomas More Society warned of the “great legal problems, great confusion” and the “actual human beings who will be hurt” if DOMA is no more.

Family Research Council president Tony Perkins told activists that if the Respect for Marriage Act passes, “your tax dollars go to pay for the federal benefits and subsidies of gay couples” because liberals wanted to “award” marriage “to a small, vocal and already well off special interest group” and consequently cause “harm to society”:

Today the Senate Judiciary Committee passed S.598, Sen. Dianne Feinstein’s (D-CA) bill that would completely eradicate the Defense of Marriage Act (DOMA) and the protections it affords taxpayers and the majority of state’s voters who have decided to define marriage as between one man and one woman.

The misnomer medal of the month might have to be awarded early! S.598, the misleadingly titled “Respect for Marriage Act” not only disrespects American’s across the country who want to protect traditional marriage--and have done as much in the 31 states which have passed statewide referendums in favor of marriage--it will also require your tax dollars go to pay for the federal benefits and subsidies of gay couples, irrespective of where they live, who have gotten “married” in 6 states that allow it.

Marriage is not some prize that liberals can award to a small, vocal and already well off special interest group. Marriage between one man and one woman was created prior to the formation of any governments and is given benefits by governments because it uniquely contributes to a productive society. Trying to change the definition to fit some misguided concept can only cause harm to society.

Phyllis Schlafly’s Eagle Forum lamented that if DOMA is repealed, states that don’t legalize same-sex marriage will be “forced to recognize and subsidize another state’s objectionable definition of marriage,” urging activists to make sure the Respect for Marriage Act isn’t another “item from the radical liberal wish list” that is attached to the National Defense Authorization Act:

As you might have heard, the liberal Senate Judiciary Committee passed a bill shamefully misnamed the "Respect for Marriage Act" (H.R. 1116, S. 598), which would repeal the Defense of Marriage Act (DOMA), today by a straight party line vote. All 10 Democrats voted Yes and all 8 Republicans voted No.

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Now that six states have legalized same-sex marriage, in many cases by judicial or legislative fiat, overriding the express will of the people of those states, DOMA is more essential than ever to ensure that states choosing to protect traditional marriage are not forced to recognize and subsidize another state’s objectionable definition of marriage.

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We are hearing some reports from Capitol Hill that liberals in the Senate are considering introducing the bill as an amendment to the Department of Defense (DOD) Authorization Bill.

As outrageous as this sounds, it is becoming a liberal tradition. This would be the third consecutive year that the liberal Senate has attached an item from the radical liberal wish list to this bill that is so important to our nation's defense, knowing that our legislators respect our military and don’t like to oppose defense-related authorization bills. Last year, they attempted to attach a repeal of the 1993 law prohibiting homosexuals from openly serving in the military, and the year before that, liberals attached a federal “hate crimes” bill to the DOD Authorization Bill.

William B. May of Catholics for the Common Good said that repealing DOMA will ultimately harm children:

It was disgusting to see adults trivialize marriage by bickering about benefits for gay couples while the rights and interests of children in the marriage of their mothers and fathers were being thrown under the bus.

Children have a right to know and be cared for by their mothers and fathers, and government has an obligation to promote the recognition of that right by encouraging men and women to marry before having children. But "marriage equality" says it should be discriminatory to promote marriage between a man and a woman as having any unique value or benefit for children and society. That is a lie.

Today, Senator Feinstein and the other 9 Democrats on the Senate Judiciary Committee made a statement that the government has no interest in the only institution that not only unites a man and a woman with each other, but with any children born from their union.

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But that can't happen unless we are willing to make sacrifices, change our personal priorities, and roll up our sleeves to build the army needed to take back marriage and family. This is not like any other army because this is an army of love, walking with Christ, in solidarity with the increasing number of children who are deprived of marriage mothers and fathers, and young people who are receiving a corrupted understanding of love and sexuality. This undermines their ability to form healthy stable relationships that lead to marriage as the foundation of the family. This is a crisis that is effecting almost every family.