What legal argument could there be to defend the consitutionality of the Defense of Marriage Act?

To my mind, there is no defense of it.

The only defense is the delusions in the minds of bigots.

Some say that heterosexual couples are more productive since they can actually make a baby and by being unable to naturally make a baby themselves, a homosexual couple threatens society, though I think the counter to that is that there is a difference between raising a healthy, productive future member of society and just proving that your genitals work.

Along those lines will be questions about what sort of parents homosexual couples are, though that would require overlooking the abuse and neglect that heterosexual couples are capable of. I think that a couple that goes through a lot of effort and expense to adopt a kid will be more likely to be caring parents than some teenager who forgot to use a condom at a drunken party.

I see no legitimate defense that holds water though.

Like @marinelife and @jerv said, there is no argument. It’s ridiculous that they’re still trying to keep people from getting married.
Truly, it’ just a matter of time before it is completely legal. It makes me mad, though, that people keep trying to dely that when.

Reading the Constitution, the only thing I can see is the Supremacy Clause. The law actually states that it overrides the Full Faith and Credit Clause in Article IV Section 1 which says that states have certain reciprocal obligations to one another, to recognize each other’s “public Acts. Section 2 of DOMA excludes same-sex marriages from the state “acts” that any other state needs to recognize. However, it isn’t clear how Congress has the right to set aside portions of the Constitution by act of Congress. It seems to me DOMA files in the face of the Equality Clause.

I love small government conservatives going to bat to defend big government intruding into every state, telling each what marriages they can and can’t recognize, and into the examination room with women and their doctors, trying to tell them what they must endure in anti-abortion humiliation and propaganda before they can get an abortion. Republicans ran on the promise of creating jobs. So far, they have done exactly NOTHING directed at anything but losing.

As some wit observed, the right wants a government so small it will fit in every single American’s bedroom.

The only thing that I think is even close to a real actual legal argument is that the federal government has an interest in maintaining the status quo in it’s application of certain laws – such as income tax laws and immigration laws – until there is a general consensus that marriage in the states includes same sex marriage.

The real problem with this argument is that it’s contrary to precedent. Yes, there’s a practical issue about state comity – states must recognize laws and judgments of other states. Marriage, however, has long been an exception to that – it’s a legal status relationship. Therefore, much when one moves from one state to another, they must fulfill certain residency requirements to take advantage of certain state benefits. For marriage, the traditional judgment has been that if a marriage is performed in another state that is against a fundamental policy of another state – that state need not recognize the marriage (there have been cases for instance where the marriage of close relatives in one state was not recognized in another).

Now, the Constitution prohibits state laws which unreasonably prevent travel between the states – so this could be called into question. BUT it is a long standing precedent. Therefore, there was really NO NEED for the Fed to pass DOMA in order to protect states against recognizing marriages of other states, as they could raise the public policy argument.

Of course, fed challenges would be inevitable, and that’s part of the reason the law was passed (not a good legal reason – but a reason). Of course, because someone might be married and one state, and not another, the federal government would end up having to treat SS couples differently for tax reasons and potentially immigration state by state. That’s a problem – HOWEVER, it’s something that the federal government handled just fine during the period prior to Loving v. Virginia when some states had anti-miscegination laws. So, a mixed-race couple could be married in one state, go back to another, and it would be a crime. Loving was an easier case for the SC, of course, because there were many times also criminal charges associated with the relationship (e.g., it was ILLEGAL to get the marriage) so the rights problem was clear. However, regardless of that, the fed applied the law even though mixed race marriages existed in some states and not others without need for a general federal law.

So, the only legal argument (which is more of an efficiency one) seems very weak. I can’t really think of another support for it.

Actually, you can quote the dictionary. Its done all the time in legal arguments.

Of course, there are great counterarguments here anyway.

@roundsquare – the problem with it in that case is that the word marriage isn’t in the Constitution…and that the right to marriage is a fundamental right, described in Loving as being limited when one is unable to marry who they want basically.

In that case, in fact, the argument was made that there was no limitation – because black people could marry whatever other person they wanted…as long as that person was also black.

Familiar argument…it was tossed aside there though…

I don’t think he can find an argument that hasn’t already been stated. Follow-up question: If you’re a Republican, do you have to vote as John Boehner says?

@iamthemob Right, I said there are great counterarguments. I was just pointing out that dictionary definitions are often used.

In any event, the right to marriage is not a “fundamental right” (however you define it). It would be perfectly fine if the law didn’t have a concept of marriage at all in it. The basic problem is with equal protection.

The defense of the DOMA act could run something like this.
> The court tries to interpret things in such a way as to avoid constitutional problems.
> Interpret the DOMA to say that marriage only makes sense in situations where a couple can actually have a baby together. (The reason we allow barren people to get married is because its an invasion of privacy to require a medical test).
> Therefore, there is no equal protection problem because homosexual couples can’t have babies.

Not a great argument, but hey, I’m not an expert in this area.

@roundsquare – Don’t take it with the “why aren’t you listening!?!?” tone that I could see the last post containing. ;-) Not meant as an offensive at all.

Dictionary definitions are used – however, they’re rarely used as good legal reference points (you might be interested in this – I was. It discusses the variety of citation uses the Supreme Court has called on the dictionary for).

Constitutionally, though, the Supreme Court has listed the right to marry as one of the non-enumerated constitutional rights – basically, it’s a right that flows from, supports other, or is inextricably related to other rights in the Constitution. These rights are basic to being a citizen, and an assault on them is subject to strict scrutiny.

The above argument you make out is one of the ones put forward for DOMA – in a way. The “reproductive” element of marriage was used to support the argument that marriage should be defined as between a man and a woman. However, interpreting the law in the manner you suggest to make it Constitutional adds a host of other issues. Federally, it would potentially retroactively null marriages where the couple is unable to reproduce. Essentially, that means that one who has had surgery to prevent reproduction would no longer be married, those who have gone through menopause can’t be married, and the infertile could never marry, etc. Thereafter, you have the same problem of inconsistency – only on a much grander scale.

Now, when you bring up the equal protection issue, there are two things. First is that the limiting of a right needs to be subject to strict scrutiny. HOWEVER, the right to marry someone of the same sex has never been universally recognized by the law. SO, we could say that DOMA survives scrutiny because it is not limiting rights, but refusing to expand them. There is no violation if a law simply defines the law as it has been applied more clearly, right?

The problem, though, is that the states have again traditionally been the ones to define marriage. Therefore, it essentially makes the states the agents of the discrimination – it is the states that must treat their same-sex married couples differently from the “opposite marriages.” So, although it nominally simply doesn’t refuse to expand rights, it practically limits the rights of states to manage their family law in a non-discriminatory manner.

I do not see the difference between limiting rights and refusing to expand them. In either case it is discrimination and denial of due process. That states have a history of discrimination is no justification for it to continue.