Sunday, October 21, 2012

DOMA, Affirmative Action, and "equal protection of the law"

Ed Whelan at NRO has a fine essay on the recent Second Circuit decision invalidating the federal Defense of Marriage Act. It seems that DOMA violates "equal protection of the law", under the 14th Amendment.

Let me figure this out.

A law that applies equally to all citizens-- that if you choose to marry someone of the same sex, your marriage will not be sanctioned by the federal government--  violates "equal protection of the law", which stipulates that the law must apply equally to all citizens.

Yet an affirmative action law intended to apply unequally to citizens-- that you will be categorized by race and be given legally-mandated benefit or harm according to your race-- doesn't violate "equal protection of the law."

Let me try to figure this out again.

You choose whom to marry, but you don't choose your race.

All laws that differentiate between choices (you choose to steal or not, or to drive or not, etc), but apply equally to all citizens who may or may not choose to make that choice, inherently comply with "equal protection".

You don't choose your race. So laws that differentiate according to race don't apply equally to all citizens, and obviously violate the "equal protection" clause.

Why is the law that provides equal protection overturned, and the one that violates equal protection routinely upheld?



  1. Moreover, DOMA does not even attempt to prohibit "gays" from marrying -- it doesn't even require any official to enquire into anyone's sexual preferences.

    And, it applies to normal persons equally as to "gays".

  2. Preposterous ruling. DOMA violates the tenth amendment, not the 14th.

    1. DOMA doesn't violate the 10th amendment, John. DOMA has nothing whatsoever to do with state regulation of marriage. It leaves state marriage laws untouched.

      DOMA has to do with federal recognition of varying marriage laws/rulings in various states as applied to the federal government, only.

      The federal government obviously has to have some standard by which to adjudicate state marriage issues in federal employment, transactions, etc. In the past, there was no problem, because state marriage laws were all the same.

      Since with gay marriage there are differences, federal legislation is necessary to establish regulations for dealing with different laws as applied to federal matters.

      DOMA is entirely constitutional.

      Quoting Ed Whelan at NRO: (

      "The definition of marriage for purposes of provisions of federal law is inherently a federal matter. As Jacobs elsewhere (p. 41) acknowledges, section 3 of DOMA doesn’t affect each state’s ability to determine whether same-sex couples can marry under state law."

    2. Note also, John, how the 10th amendment is ignored in a host of federal decisions on matters traditionally relegated to the states (contraception in Griswold, abortion in Roe, homosexual acts in Lawrence).

      Why does the 10 amendment-- a very important point of law-- get ignored for decades, then get applied where it doesn't really apply?

      The answer: the courts are just making it up as they go along, in order to get the decision they want.

    3. @mregnor:
      I agree that the tenth amendment is all too often ignored. I have yet to see it invoked where it shouldn't be.

      The reason I say DOMA violates the tenth amendment is this:

      1. The circumstances under which a state issues a marriage license do vary from state to state. California will issue a marriage license to a couple of first cousins, but not to a couple of 16-year-olds. Mississippi will issue a marriage license to a couple of 16-year-olds, but not to a couple of first cousins.

      2. Per the Full Faith and Credit clause, California must recognize a marriage between two 16-year-olds licensed in Mississippi even if such a license would not have been granted in California. By the same token, Mississippi must recognize a marriage between first cousins licensed in California, even if such a license would not have been granted in Mississippi.

      3. The right to decide the circumstances under which a license will be issued is a power reserved to the states under the tenth amendment.

      4. If the state of Vermont wants to issue marriage licenses to two men (or three people or a dude and his mom) they have the constitutional power to do so, and Oklahoma has a constitutional obligation to recognize those marriages as valid.

      Whether you and I agree that such unions are "real" marriages is another matter, but the law says what it says, and I think it leads us toward the only sensible compromise on the matter: let the states decide, and make sure full faith and credit is given when and where applicable.

      I do, however, agree with you that the 14th amendment has nothing to do with it.

    4. But maybe I misunderstand the scope of DOMA. I'll read up on it a bit more.

    5. The status of the Full Faith and Credit Clause remains to be determined with respect to gay marriage. If it applies, then only one state need to have gay marriage (even by judicial fiat), and then all other states would have gay marriage, because gays could simply go to that state, get married, and move.

      That's a very radical proposition, and is not currently accepted law.

      I also point out that the Clause applies to States, not to the federal government, which obviously must pass legislation to cover federal employees, etc.

    6. Yes, I do think a correct reading of the tenth amendment and full faith and credit clause will essentially lead to gay marriages recognized in every state, although not to gay marriages performed in every state. It may not be accepted law, but then I frequently disagree with judges.

      The point of a lot of these constitutional amendments is making it possible to share and build a society with people who don't share our beliefs. The compromise described above allows states to determine the circumstances under which they issue marriage licenses - just as pharmacy owners can determine what drugs they sell.

    7. I have no problem with the democratic process. Of course gay marriage has been forced on states, by unelected judges, outside of the democratic process.

      Much of the cultural revolution of the past half decade-- the ban on school prayer, ban on teaching critiques of Darwinism, the abortion license, the contraception license, the sodomy license-- has been imposed by elitist judges, in opposition to democracy.

      Marriage is public recognition of a relationship. The public, however, is being left out of the decision.

    8. has been imposed by elitist judges, in opposition to democracy.

      Judges appointed and confirmed by the elected branches of government, applying the laws that were passed by the elected branches of government. The problem you have is that those judges have actually looked at the laws and made rulings that give broad application to the provisions you thought only applied to your special group.

    9. Judges usurping legislative power is not a Constitutional cog in our republic, but an unconstitutional infraction.

      Usurpation of legislative power by judges is no more a legitimate part of our democracy than bribery is. Both occur, neither is legitimate.