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Defense of Marriage Act, ObamaCare and Kagan

By: Curt Levey (Diary) | February 23rd, 2011 at 08:37 PM |

RESIZE: AAA

President Obama’s decision today to abandon the Defense of Marriage Act (DOMA) is both outrageous—as a matter of Justice Department policy and constitutional law—and a miscalculation that will decreases the chances of ObamaCare being implemented, while potentially increasing calls for Supreme Court Justice Kagan to recuse herself from certain gay rights cases.

The President’s refusal to defend DOMA, a federal statute enacted by overwhelming margins in the Senate (85 – 14) and House (342 – 67) and signed into law by President Clinton, flies in the face of Justice Department policy and principles of democratic government. It has long been the Department’s policy to defend any challenged federal statute unless no plausible argument can be made in its defense. By ignoring that policy, President Obama is engaging in a disturbing power grab that, if taken to its logical conclusion, would allow him to undermine any duly enacted federal law that he doesn’t personally agree with.

But that’s not the worst of this power grab. In announcing the President’s decision, Attorney General Holder informed the nation that “the president has concluded that … sexual orientation should be subject to a more heightened standard of [constitutional] scrutiny.” In layman’s terms, that means that President Obama has decided that the Fourteenth Amendment’s Equal Protection Clause prohibits distinctions based on sexual orientation in the same way that it prohibits racial discrimination.

Of course, the authors of the Fourteenth Amendment would be quite surprised to learn that they had made same-sex marriage a constitutional imperative. However, even putting originalism and strict construction aside, it was heretofore accepted that only the judicial branch—particularly the Supreme Court—has the authority to determine the appropriate level of Fourteenth Amendment scrutiny and whether a particular piece of legislation meets that level of scrutiny.

Apparently, President Obama has now taken that authority upon himself. And this from an Administration that was outraged that Congressmen were even discussing the proper interpretation of the Fourteenth Amendment provision dealing with birthright citizenship.

This is not the first time that President Obama has shown he is willing to do an end run around the other branches of government in pursuit of his political agenda. His use of White House czars to circumvent the Senate confirmation process and of the EPA to circumvent legislative resistance to cap and trade should have forewarned us that he would attempt today’s end run around the judicial system.

Even if today’s end run succeeds, President Obama may come to regret it should he fail to win reelection. In that case, it will be up to a Republican president to defend ObamaCare against current and future constitutional challenges. Obama has just handed his successor a perfect excuse to effectively repeal or cripple ObamaCare by refusing to defend it in court.

Even in the short term, the President has strengthened the hand of ObamaCare opponents, particularly the many states that question its constitutionality and plan to resist its implementation. After abandoning DOMA, Obama has no moral authority to argue that, because ObamaCare is the law of the land, all government officials must enforce it unless and until the Supreme Court decides it’s unconstitutional.

Finally, even the President’s critics will concede that his conclusion about the proper level of constitutional scrutiny for sexual orientation—whether right or wrong—must have been based on legal research and analysis rather than just a sudden political whim. If so, Obama and Holder surely consulted the nation’s Solicitor General—the government’s top constitutional attorney—when conducting this important legal analysis. As a result, the Administration will be called upon to disclose whether Elena Kagan was still Solicitor General when this consultation began.

If the answer is yes and Kagan was involved in determining the federal government’s official position on the proper scrutiny for sexual orientation, it opens up an ethical can of worms for her concerning Supreme Court cases in which that standard is at issue. It’s a can of worms that Obama may come to regret.

Cross-posted at the Committee for Justice blog.

Tags: Defense of Marriage Act, Elena Kagan, Fourteenth Amendment, gay rights, Obama, ObamaCare, same-sex marriage

COMMENTS

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tenndon

Alfred E. Neuman is president? Tell me it ain’t so.

utahrepublican

it isn’t so because I’d prefer him 10 to 1 over what we’ve got.

http://jhpruitt.blogtownhall.com/ kipling

The following is a llink to the GOProud blog which they posted on Feb. 23rd, the same day Mr. Obama and the Justice Department announced their decision to abandon the DOMA.

http://www.goproud.org/goprouds-position-on-doma/
mycroft_2010

So Obama has simply declared that “orientation” is a class equivalent to race.

It’s time to boldly confront the central, root issues here:

1. Evolutionary theory tells us all nature desires to pass along its genes. How can homosexuality be an “orientation” then? Why would nature “orient” something to its own genetic extinction?
Genetics, not just religion, would label homosexuality an aberration.

Doesn?t the fundamental predicate of evolutionary theory render homosexuality an aberration not by religious standards but scientific ones?

2. If homosexuality is an “orientation” are all other forms of sexual desire as well? Are pedophilia, necrophilia, or the whole spectrum of other paraphilias “orientations” as well? Why or why not? What separates out one form of sexual desire from another; what makes one an “orientation” and the other not?

(Note: This question is about the nature of sexual desire. It is not to say that a homosexual, a child, a dead person, or an inanimate object are all equivalent. It’s asking why one desire is an “orientation” and another is not. The focus here is the person doing the desiring, not the person or object being desired.)

3. If all forms of sexual desire are “orientations” does that make groups that identify with that type of sexual desire a “minority” group? If so, should they obtain certain “rights” denied by the “majority”? Why or why not?

Please consider copying these ideas, refining them (if you’d like), and sharing them with your preferred blog, discussion board, or conservative (or even liberal) commentator.

nick2000

Evolutionary theory says that useless genes eventually drop off. However, evolution works because new variations appear randomly, thus allowing evolution to occur.

In any case, homosexuality exists among animals as well.

I am not sure what you got hung up on the word “orientation”. Does it matter this much? Let’s go back to what matters. If marriage is what matters, then let’s work on that. By the way, are we talking about marriage in church or the civil versions? I am pretty sure that the churches will not be marrying gay people even if gay people can marry otherwise so that’s safe I suppose. I don’t think that gay people marrying will prevent straight people from marrying or even push straight people to divorce (Newt did not need help). So, what is this about again besides preventing others from doing things that do not impact you?

http://jhpruitt.blogtownhall.com/ kipling

“So, what is this about again besides preventing others from doing things that do not impact you?”

1. Marriage is the oldest institution known to man.

2. Traditionally, marriage has been defined socially and legally as a union between a man and a woman.

3. Traditional marriage is the foundational building block of a stable family, communities, and society in general.

4. The redefinition of marriage to suit less than 3% of the population would essentially destroy marriage by redefining it. Conservatives complain all day long about how the U.S. Constitution and its terminology are redefined, thus destroying its original meaning and loosening the building blocks of our society. Yet, some so-called conservatives, are willing to allow the redefintion of an institution that existed long before the U.S. Constitution and is also a primary building block of our society.

5. The traditional family is the greatest assest to a child and an indicator of future success. It is also a determining factor in economic and educational outcomes. Alternatives to the traditional family are a negative influence upon society. Please see the number of men raised by single moms who are currently in prison. Please see the impact of absentee fathers upon the African American community.

The destruction of traditional marriage will have negative impact on society, our country, our economic prosperity, and our ability to remain free people.

So yes, it does impact me.

salander

When the California Prop. 8 case was being argued in court, the judge asked the attorney defending Prop. 8 how same sex marriage threatened traditional marriage. The lawyer said he did not know. I’m part of a two-sex marriage. Knowing that gay people are getting married will not threaten my relationship with my wife. If it will undermine your marriage, you have a problem, but not with same sex marriage.

http://www.hakubi.us/ Neil Stevens

Wow you don’t even begin to understand the issues involved.

But please, keep using that college freshman argumentation.
salander

tell me the harm of same sex marriage. How does it undermine un-same sex marriage? I don’t understand the causal argument there.
http://www.hakubi.us/ Neil Stevens

He writes at NRO.
Spiral

I?m part of a two-sex marriage. Knowing that gay people are getting married will not threaten my relationship with my wife.

It is true that a gay people getting married will not make you think your wife if ugly and rude if you currently think of her as beautiful and courteous.

But traditional marriage is only partially about a man, a woman and how they feel about each other. It’s also about the children a man and a woman might create.

To be blunt, if a man and a woman have sexual intercourse, a baby might (not always, but might) result nine months down the road. If two men have sex with each other, we can safely say that there will be no baby as a result of their sexual intercourse. Similarly, if two women have sexual intercourse, no baby will be born as a direct result of their sexual intercourse.

Now, it is possible, given the crooked timber of humanity and the especially crooken timber of the male gender, that less than 9 months after a man has sexual intercourse with a woman, the man might have forgotten how much he enjoyed the sex.

Yet a baby might still be born anyway, long after the sex is over.

Now, a baby, unlike the man and the woman, can not take care of himself or herself. An infant needs to be raised somehow, with the help of others.

When the government defines civil (not religious) marriage in the traditional way, between one man and one woman, government is presenting the father and mother as the ideal head of household.

Men and women are different and they fill complementary roles when they are the head of a two-parent family. Two men simply can not provide the same guidance that one man and one woman can. Neither can two women. And this does not mean that the two men or the two woman are incompetent or otherwise bad people. It just means that being raised by one man, the father, and one woman, the mother, is the best way for children to be raised.

The government encourages this “arrangement” by establishing civil marriage as the “traditional” one man and one woman union.

Make sense?
nick2000

There seem to be several messages in your comment.
Are you saying that Marriage should be only between a man and a woman because that is the only way to get children?
I do not think that the subject of same-gender marriage with children was in the discussion.

In any case, you state that the ideal arrangement is one man and one woman union because that is the best way to raise children. So… since this is the best way to raise children, you want gay marriage to be forbidden (even if they had no intention to adopt children)? What about making single parent illegal? After all, this does not fit your definition of an “ideal arrangement”.

It seems to me that you oppose the concept simply because, well, you are not used to it. I have yet to hear a convincing argument against same sex marriage. (The courts have not heard any either it seems)
Spiral

I’m saying that the government can not just take a completely hands off approach to the raising of children. This is because children can not raise themselves. They need the guidance and assitance of adults.

Traditional civil marriage is the template that government can and should use to encourage men and men to take care of the babies they helped create.

Now, some believe that marriage isn’t really about children at all, only about adult romantic love. They are only half-right. It is about romantic love, but it is primarily about the proper template, voluntary template, for the raising of children.

Others believe that marriage is about raising children, but that two men can raise children as effectively as a one man and one woman union can.

My argument for traditional civil marriage is that it is about children and not just about romantic adult love and that the one man and one woman union is the ideal head of household.

Now you say, “Do you want to ban single parenthood?” No. But I think society and government should encourage the two parent family, with one man and one woman at its head.

http://www.plumbbobblog.com Plumb_Bob

You wrote: “. Traditionally, marriage has been defined socially and legally as a union between a man and a woman.”

It’s not tradition that establishes this, but common human practice. “Tradition” implies cultural choices and habits. You would not call burial a tradition, would you? No; the specific cultural version of burial is a tradition, but burial itself is common human practice.

What we’re dealing with here is neither choice nor habit, but a sociological and anthropological fact about humankind. The position of the gay advocates here is an attempt to redefine humanity as something it is not. “Who does it hurt” is a daft question; we may not be able to foresee how redefining humans as birds is likely to hurt us, but that does not support the redefinition.

http://jhpruitt.blogtownhall.com/ kipling

Plumb_Bob, You raise an interesting, and I think valid, point about the use of terms like “traditional” and “tradition.” I will have to chew on the matter so more but I like the idea of simply stating that marriage is a union between a man and a woman. No need to use traditional because it simply “is.”

schteve

“1. Marriage is the oldest institution known to man.”

Marriage in its current form is quite new. The concepts of government recognition, equal status between husband and wife, and choosing to marry out of love rather than political or monetary gain certainly don’t back very far.

“2. Traditionally, marriage has been defined socially and legally as a union between a man and a woman.”

It hasn’t always between one man and one woman. Polygyny has been practiced in various cultures around the world. Some Muslims still practice it today. Marriage has been an agreement between a man and a woman’s father for most of that time too.

Moreover, what are you trying to gain by looking at marriage’s historical record? Up until the most recent decades, marriage had traditionally always been between people of the same race. Should I use that fact to justify what it should encompass today? Why not just argue that marriage has always been between two people (even though it hasn’t), and therefore that trying to include two men or two women in the definition isn’t changing anything? You open yourself up to those lines of reasoning if you start justifying it with history.

“4. The redefinition of marriage to suit less than 3% of the population would essentially destroy marriage by redefining it. Conservatives complain all day long about how the U.S. Constitution and its terminology are redefined, thus destroying its original meaning and loosening the building blocks of our society. Yet, some so-called conservatives, are willing to allow the redefintion of an institution that existed long before the U.S. Constitution and is also a primary building block of our society.”

It has already been redefined countless times by society and governments. I can’t see how “redefining equates to destroying” is any sort of valid argument.

“5. The traditional family is the greatest assest to a child and an indicator of future success. It is also a determining factor in economic and educational outcomes. Alternatives to the traditional family are a negative influence upon society. Please see the number of men raised by single moms who are currently in prison. Please see the impact of absentee fathers upon the African American community.”

So shouldn’t we focus some efforts on preventing singles from raising children or African Americans from having children out of wedlock? I don’t see how preventing couples who cannot biologically have children is going to do anything to help curb the problems with children we face today.

phenne

Without them, no civilized, prosperous, free society survives.

By the way, if you believe 3% of our society has the divine right to change the known history of civilized humanity, ….. dream on.
Raven

“Marriage in its current form is quite new. The concepts of government recognition, equal status between husband and wife, and choosing to marry out of love rather than political or monetary gain certainly don?t back very far.”
While equal status between the partners has been intermittent through the different cultures, all of those date back to the very beginnings of marriage and/or civilization.
Government has Always recognized the power and importance of marriage and marrying for love has been common throughout all the ages except in the upper classes where other concerns took precedence to the families involved. The poor and middle class don’t try to marry for money or political power. Where will they get it from?

“Up until the most recent decades, marriage had traditionally always been between people of the same race.”
You have several thousand years of Western and Asian history to go through if you think that. The Mongols married the Chinese who, in turn intermarried within the “Chinese” ethnicities (there were over 50 of them) and the Koreans and the Southern Asian (non-Chinese) races. I, myself, am a product of 2,000 years of racial interbreeding out of the West. Middle Eastern, Greek, Germanic, Saxon, Anglish, Briton, Gaul, Gaelic, Celt, Pict, Moor, Cherokee…
I suspect you, too, are a mix of races.
Except for blocking marriages with either “uncivilized” races or races with which one’s people were at war, interbreeding is as ancient as humanity. Hell, the current theory is that the Neanderthals were bred out of existence by mixing with HomoSapiens.
There is no significant history of racially “pure” marriage in this world.

“It has already been redefined countless times by society and governments. I can?t see how ?redefining equates to destroying? is any sort of valid argument.”
The “redefining” has only been a question of polygyny, not of the gender of the core partners. “How many wives can a man have?”
vs “Can a man have a husband?”
Already, this argument has devolved in countries that accept homosexual “marriage” into “Can I marry my sister?” and “Can I marry my dog?”
We don’t have to look far to see where gay “marriage” goes. Canada is having these arguments now.

“So shouldn?t we focus some efforts on preventing singles from raising children or African Americans from having children out of wedlock? I don?t see how preventing couples who cannot biologically have children is going to do anything to help curb the problems with children we face today.”
And how do you plan to do any of that? Take their children away? Sterilize them?

What we need to be doing is preventing any further attacks on marriage by the government, the homosexuals and the anti-religious (not entirely a redundant list, but not mutually exclusive, either). We also need to remove some of the attacks already levied against it (like more welfare for single parents and “no fault” divorce).

txagsw

What matters is the person who is suppose to ensure that the laws are enforced is saying he is KING and he declares something is unconstitutional and therefore he will not enforce it. THE LAW IS THE LAW. He could offer legislation (when he had both senate and house in his favor would have given him what he wanted) and pass legislation in favor of what he wanted. This is what Henry VIII did, I’m King and I tell you what is law and what is not” He is not KING and he has to enforce THE LAW, LIKE IT OR NOT. That is not his power and it is a HUGE POWER GRAB. He does not know his job nor does he care “I do what I want”!

salander

This is what presidents do. All presidents. President George W. Bush repeatedly asserted in signing statements that he would not enforce provisions of laws that he regarded as unconstitutional.

http://www.hakubi.us/ Neil Stevens

And if you give me a Dem (including Wikipedia) source I will ban you.
salander

I don’t have time for much research but here is an interesting tidbit. The 1993 memo states:

“In each of the last three Administrations, the Department of Justice has advised the President that the Constitution provides him with the authority to decline to enforce a clearly unconstitutional law.”

The three administrations in question are Clinton, Bush & Reagan.

http://www.justice.gov/olc/signing.htm#N_7_

It’s not nice to threaten to ban people.
http://www.hakubi.us/ Neil Stevens

Psst. George W Bush wasn’t even elected until 2000, so your 1993 memo is irrelevant.

I don’t know how Moe puts up with people like you on his side on this.
schteve

www.drugpolicy.org/docUploads/USDOJIstookLetter012605.pdf

This shouldn’t be a shocker. Every recent president has done this.
http://www.hakubi.us/ Neil Stevens

Or is this a talking point?
http://www.hakubi.us/ Neil Stevens

The letter you point to shows a situation where the government already lost in court, and is choosing not to appeal a lost cause.

Your comparison is totally invalid.
schteve

you have no problem with Obama not appealing last year’s ruling against DOMA that he did defend in court?
bogornes

Intresting point and quite informatvie, there seem to be several instances in which a President can decline to enforce a law. John Roberts was also involved in such a discussion in 1990 (don’t have a link handy).
SoFiMil

Did you read Neil’s reply to the link you and salander tout? I see you also like to reject the research process, and just say any darn thing you think of.

No link? Then no respect.

Every post of yours since you’ve opened an account at RedState has been in response to the issue of gay marriage. Obsessed with sex?
SoFiMil

Bogornes, are you, salander, and schteve in some sort of cabal? Schteve’s link wasn’t analogous to your hypothetical. Unlike you, at least a weak attempt at a link was provided.
SoFiMil

Moderators, looks like Bogomes, Salander, and/or Schteve are one in the same. Everyone of their posts has been on the issue of gay marriage. If they like each other so much, he/she can marry himself/herself.
SoFiMil

In that case, I have no time at all to respond to your silliness.
idahoboy

about just that thing.

www.mead354.org/uploaded/faculty/pkautzman/APUIV/C13_The_Presidency/Signing_Statements_by_Cooper.pdf
phenne

really?

Solid, cogent examples please ….We’ll be waiting ….

mycroft_2010

nick2000,

Thanks for the thoughtful reply.

I’m focusing on the word “orientation” because Obama is now simply declaring it the equivalent of race. And because we use the term with very little consideration of whether it accurately describes what it purports to describe.

The existence of homosexual behavior among animals, while interesting, does not get at the issue of whether or not such behavior is an *orientation* towards non-reproductive sex (a word that suggests an inherent, genetic disposition towards or away from a particular act) or whether is it merely a *behavior*, chosen for some other reason at a particular moment.

The distinction matters if society is going to determine one sexual proclivity outside of heterosexuality is indeed an *orientation*. It matters for this debate. But it also matters, in part, because there are a whole lot of other sexual behaviors (that the current batch of activists don’t wish to talk about) that some could also claim are “orientations” and thus deserving of special protection.

It just seems that if we go down this road, we should look a few steps ahead and consider the implications.

schteve

if other sexual behavior is termed an “orientation”?

Even if sexual orientation were somehow found to be a suspect class, that doesn’t mean discrimination against people on account of their sexual orientation is impermissible. It just means there has to be a good reason for it. Even the best lawyers couldn’t convince a court that laws discriminating against a necrophiliac’s “sexual orientation” are unconstitutional.

barleycorn

Animals also sniff butts, eat their young and lick themselves in public. None of which has any bearing that I can see on whether any of those things represent best practices for humans.

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
Raven

And have never seen an example or even seen an example cited by those who make such a claim…
“In any case, homosexuality exists among animals as well.”

DonPMitchell

An interesting topic, but by that argument any form of non-reproductive sex would be unnatural. The vast majority of heterosexual acts are not done in an attempt to produce a baby. In a social species like humans, evolutionary pressures can be subtle and unexpected, because you are talking about survival of the species, not just an indivdual. And attraction of individuals for each other (sexual and nonsexual) play very complex role.

For another example, it might also seem unnatural for someone to go to war to protect his country, when that diminishes his chances of survival. Better to stay at home, wear a peace symbol and hang out with the wives of absent soldiers. We naturally consider that idea abhorant, because our survival as a social species necessarily means we have built in feelings about morality that sustain the social mutually-cooperative nature of out species.

I don’t have a theory justifying homosexuality, I’m just saying, it’s way more complex than your analysis suggests.

mycroft_2010

DonPMitchell,

Thanks for your thoughtful reply. It’s unusual to be able to discuss something so controversial civilly on the internet….

I get your point about society being a matrix of concerns and that evolutionary forces might work in unusual or seemingly indirect ways. I’ll have to weigh that in my considerations, to be sure.

What strikes me, though, are two things. First, your example of the soldiers and the pacifist. You conclude by noting that “we naturally consider that idea abhorant [sic]” and note that it’s because of evolutionary impulses to preserve the species.

If that’s true, might that cut both ways? Might that mean that the societal distaste for homosexuality stems from the same impulse? (I’m not sure what the implications of that would be — just thinking of the top of my head before heading to work….)

But the second point: You note that by the logic of my first post, any non-reproductive sex would be unnatural, including various heterosexual activities that don’t lead to a baby.

Again, the question centers on the distinction between *orientation* and *behavior*. There are many behaviors, sexual and nonsexual, that don’t produce babies. To deny that non-reproductive behaviors exist would be absurd; so on that we agree.

But when we talk of “sexual orientation” we’re using a nomenclature that makes a claim about how we work on a genetic level, aren’t we? We’re saying that innately, genetically we have a drive towards a particular end. If that is true and an innate, genetic drive exists, I can see how heterosexuality fits perfectly with evolutionary theory.

But homosexuality poses a unique situation, on that, at best, can only be shoe-horned into our scientific schema by supposition (as far as I can see). And, as my questions #2 and #3 posed, it raises the question of why we delineate between certain sexual proclivities, calling some “orientations” and others “behaviors”.

Have to run….
http://www.plumbbobblog.com Plumb_Bob

“by that argument any form of non-reproductive sex would be unnatural. The vast majority of heterosexual acts are not done in an attempt to produce a baby.”

You’ve drawn your definitions incorrectly.

The evolutionary behavior is not “each individual instance of sexual intercourse,” it’s “the normal sexual behavior of humans.” The normal sexual behavior of humans, including recreational sex, results in a successfully reproductive species. In fact, it’s the recreational value of sex that makes it such an effective reproductive strategy. Most babies are “accidents” (wink, nod.)

The occasional occurrence of a homosexual human, by this view, does not endanger the species. However, it is abundantly clear that this occasional occurrence (1) is an aberration, not a normal state, and (2) would endanger evolutionary progress if it became normal. This is why it’s perfectly legitimate, from a scientific point of view, to ignore the occurrence (e.g., not pass laws forbidding homosexuality) but refuse to endorse the behavior (e.g. not pass laws encouraging it, either.)

So the original post is correct; opposing gay “marriage” is consistent with evolutionary biology.

Ausonius

You are quite correct: it is an old – usually leftist – debater’s trick to appeal to Nature and therefore conclude that anything occurring in Nature is therefore acceptable.

Nature is full of errors: from hydatidiformic pregnancies (where the embryo becomes a mass of “grapes”) to dwarfism, etc.

These might occur in Nature, but cannot be called “normal” by any means.

Homosexuality is a mistake, whether in lower primates, or in humans. If it were normal, and heterosexuality the aberration, then no species could propagate or survive, unless by fission.

It is possible homosexuality persists as a brake on population growth, but we also know from e.g. the psychology of prisons, the brain can “rewire itself” sexually, if homosexuality is the only possible expression for the sex drive.

The entire thrust of Human Progress has been the manipulation of Nature to prevent such mistakes, and to improve what Nature has started.

e.g. A symphony by Beethoven or Bruckner or Mahler represents an improvement and a vast development of the sounds of Nature from birds and other sources.

schteve

“bad”, in any moral or legal sense.

Anything from being blind to missing an arm can easily be considered abnormal and a mistake from a biological standpoint. Yet that doesn’t by itself mean laws concerning sightedness or limbs are automatically okay. There has to first be a reason for making the aberration a legal handicap, if you will.

throbertmcgee

“However, it is abundantly clear that this occasional occurrence (1) is an aberration, not a normal state, and (2) would endanger evolutionary progress if it became normal. This is why it?s perfectly legitimate, from a scientific point of view, to ignore the occurrence (e.g., not pass laws forbidding homosexuality) but refuse to endorse the behavior (e.g. not pass laws encouraging it, either.)”

Ahem, allow me to introduce you to the ?helpful gay uncle/aunt? hypothesis:

The idea is that back in ?Clan of the Cave Bear” days (i.e., at a stage in human prehistory when childhood mortality was much higher than today, and individual humans were much more likely to die before reaching reproductive maturity), a cave-dude or cave-lady who had, say, 3 heterosexual siblings and 1 homosexual sibling would tend to have more grandchildren and great-grandchildren when compared with a cave-dude or cave-lady who had 4 heterosexual siblings and 0 homosexual siblings.

And the basis for thinking that ?cave-children? who were lucky enough to have a homosexual aunt or uncle would be more likely to reach adulthood and have children of their own is that this aunt or uncle would be childless, but able to do the same labor as other adults ? thus, they could contribute their surplus time/labor/wealth (i.e., meat, animal furs and leather, berries and edible roots, handmade stone tools, etc.) towards the upbringing of their nieces and nephews.

So, the cave-kids who had at least one childless homosexual uncle or aunt were more likely to grow up fat and prosperous and able to attract better mates, compared with cave-kids whose uncles and aunts were all heterosexuals with kids of their own to feed.

And assuming there’s some sort of genetic component to homosexual tendencies, it’s statistically likely that a few of those fat, prosperous nieces and nephews were carriers of the gene(s) that contributed to the homosexuality of the “helpful gay aunt or uncle”.

Of course, all this is purely speculative, although it extrapolates from a well-established principle in evolutionary biology called “kin selection”. But if one accepts for the sake of argument the general idea that having a “helpful gay aunt or uncle” can be good for the well-being of children, then there is a self-interested reason for heterosexuals to see their homosexual siblings settling down into stable “couplehood” rather than catting around: If gay Uncle Adam is able to pool his income with long-term companion Steve, he may be able to accumulate a bigger pile of savings that he can someday contribute towards the upbringing and education of his nieces and nephews.

P.S. In full disclosure so that you’ll know where I’m coming from: I’m a 40-year-old homo, have been out-of-the-closet since college, and I personally believe that marriage is intrinsically “about” heterosexual procreation, and that everyone, including gays, would be better off pursuing a “Separate But Mostly Equal” framework in which Traditional Heterosexual Marriage co-existed with some form of Homosexual Civil Union that was recognized in all 50 states and by the federal government. In fact, I’d be perfectly willing to vote for an FMA that defined marriage as “one man, one woman,” provided that it also contained a clause establishing civil unions at the federal level.

ajshea

If same-sex marriage is legalized, can legalized polygamy be far behind? And what about polygyny (one woman, many men)? If the door is opened to one, then it must be opened to all, and it will, eventually. Is that where we want to go as a society?

If polygamy is morally wrong or wrong for society, then so is same-sex marriage. If underage marriage is wrong… NAMBLA?

That’s why same-sex marriage is a danger to traditional marriage.

usadying

The ACLU and the progressives have slowly stripped all laws of any meaning. As a result, Congress just passes more and more convoluted laws. Obama is just putting the icing on his cake as he makes another end run around the Constitution.

It seems like Obama is throwing everything against the wall to see what sticks. That makes me think the real dirt is going on behind the scenes. I wonder what next crisis he is manufacturing.

Government Motors Chevrolet is buying $40 million in “carbon credits”. From whom?

dmccracken

runner12

is twofold with this move. One, it is an audacious power grab. That is obvious to anyone and everyone.

The second is something that may get overlooked in all of this. I see this as a diversionary attempt by the Administration. The unions are becoming increasingly unpopular, the people support the cuts the Repub House are making, and Obama’s numbers are in the toilet.

Ironically, I think that the Left is trying to use a social issue to divert attention away from the fiscal mess they have created. They are attempting to appeal to their most radical base.

I just hope the House will decide to hire lawyers to continue to defend DOMA against attacks.

Carol Tarasewicz

Runner12- I agree that Obama decided to pull this one today to take attention away from the Republican Govs that are making huge cuts to the unions and Obama’s OFA sending in protestors. We have to wake up the rest of this country that he is behind more of this than they know.

It is a carrot to the left, his base. Is this enough to make up for Gitmo being open? His other promises? I wouldn’t think so, but I would have to torture myself to watch MSNBC.

Obama is also trying to change the subject from the fact that he’s been so weak he seems emasculated when he has not made a direct comment on Lbia. He finally came out with a comment today, big deal. This has been going on for five days now. To me it is to little, along with too late.

runner12

http://jhpruitt.blogtownhall.com/ kipling

I wonder if it is diversionary or an attempt to flood the playing field by attacking conservatism on all fronts at the same time in an attempt to overwhelm the opposition. Conservatives have yet to unite behind a solid leader and he may hope to overwhelm before they can do so. His attacks come right after a clearly divisive CPAC conference and split between social conservatives and the more libertarian fiscal minded.

If it is an attempt to overwhelm, we may see a move toward limiting the second amendment rights of Americans in the next week or so.

runner12

Time will tell.

So much for Obummer moving to the center, huh? That lasted all of a month and a half.
http://jhpruitt.blogtownhall.com/ kipling

It could very well be a combo of both. Flooding the playing field would indeed create many diversions and perhaps stop the opposition from focusing their fire on the most crucial points.

Obummer used the fast head fake I ever saw.

http://www.timelyrenewed.com timelyrenewed

Obama’s excuse is the rapidly spreading expansion of the 14th amendment based on the Supreme Court’s illegitimate addition of the “privacy” doctrine to the hopelessly vague first section of the 14th amendment. Only by amending the 14th amendment to restore its original meaning as a ban on governmental race discrimination can we solve this and a host of other constitutional abuses by the modern Supreme Court.

Of course, this is difficult when Congress holds a monopoly on initiating constitutional amendments. Therefore the first step is to put through an amendment to the amendment process itself which will eliminate the unnecessary convention now required by Article V and permit States to directly initiate amendment proposals. This will break the current de facto federal congressional and judicial monopoly on interpreting the Constitution, and empower grassroots patriots on the state level to restore the Constitution by amendment. See http://www.timelyrenewed.com

schteve

If thirty-four states decided to call a constitutional convention to propose a new amendment, it would happen. Yes, to date all amendments have initiated from Congress, but that isn’t the only way permitted.

And given that the two-thirds of states requirement to call for a convention is lower than the three-fourth of states required to ratify a proposed amendment, it shouldn’t in theory be difficult to get enough states to agree it one if such an amendment truly does have a chance of passing.

http://www.timelyrenewed.com timelyrenewed

The convention route is not an effective method for pro-constitutionalists to restore the Constitution by amendment:

1) It has been 222 years and there has been no convention. The Framers expected us to improve the Constitution based on experience. That’s why they put the amendment concept in there. Historical experience has taught us that, rightly or wrongly, the convention mechanism has not worked as a method of allowing the states to initiate amendments. It is time to try a slightly different approach.

2) Even if a convention were called, I suspect it would be dominated by politicians and law professors, and would be unlikely to actually propose the kind of restorative amendments needed. Better to let Tea Party activists push carefully drafted amendments directly on the state level. See http://www.timelyrenewed.com/?p=130

3) The historically ineffective convention method has left the federal Congress with an effective monopoly on the amendment process. Unsurprisingly, no amendment after the Bill of Rights has ever limited the power of the federal government. Such amendments will only come about if initiated on the state level. With my proposal to eliminate the historically ineffective convention requirement, the efforts being spent on urging states to again request a convention (of uncertain outcome) could instead be invested directly in passing amendments restoring the original constitutional meanings and structure.

See http://www.timelyrenewed.com

schteve

And why, if it has, has failed?

And how do you propose getting Congress to first propose an amendment relinquishing its monopoly on the amendment process?

gwalt

Maybe he isn’t running again and just wants to do enough damage as quickly as possible. All the “campaigning” is just a head fake. Except for Jarrett, everyone is gone. Everyone. Daley takes over as Chief of Staff—– and former Chief of Staff takes over for a —-Daley. Who wouldn’t want to be in an administration for a couple of years that considers itself Royalty? Think about the trips, dinners, SS detail, limousines, parties. THAT is why I think Daley took the gig. Add this to the pay for play with Blago.

As I’ve mentioned before, he will appear to be running, collect tens of millions and take his ball and go home—– wherever that is. His lurch to the left may puzzle some pundits as pleasing his base, but I don’t buy it. And if you ask for your money back, you are a racist (wouldn’t that be delicious—the left getting a taste of what we’ve endured for years).
napensnake

there is no Constitutional authority to prevent homosexual marriage. However, he can find Constitutional authority for his health care law, abortion, national government getting involved in labor issues, education issues, energy issues, environmental issues, etc.

I suppose the Constitution is what he says it is or, in other words, what he wants it to say at any given moment.

In all fairness, the Constitution does not mention marriage so DOMA is an overreach by the national government. It is clearly a state function (Amendment X.) But it is interesting that he uses this opportunity to espouse the concept of limited government.

Keep in mind, he taught Constitutional law. Do you suppose he has ever actually read the document?

edintexas

napensnake wrote: “In all fairness, the Constitution does not mention marriage so DOMA is an overreach by the national government. It is clearly a state function (Amendment X.”

DOMA does 2 things:

1. It excuses states from what would otherwise be a Federalism obligation to recognize marriages which would be unlawful under a particular state’s Constitution and/or laws. So under DOMA Texas does not have to recognize a marriage conducted in MA.

2. It establishes the definition of marriage for Federal government purposes only.

DOMA does NOT:

1. Require the Federal definition of marriage to be used by any state.

2. Prohibit states from conducting and/or recognizing marriages other than opposite sex, 2 person marriages.

DOMA actually does a third thing – it protects states rights.

So how is DOMA an “overreach” on the part of the Federal government? In my view it is a shame that all Federal legislation, with direct impact on the states, is not as respectful of the rights of the states, and the citizens of the states. The norm has been the opposite for the past 77 years.

Spiral

DOMA really is all about letting each state determine its own definition of marriage.

And in every state where there has been a referendum, 33 I believe, all have supported traditional marriage.

geah

to Neil

George H.W. Bush was pres, we had two remember,

uselogic

“President George W. Bush repeatedly asserted in signing statements that he would not enforce provisions of laws that he regarded as unconstitutional.”…. was the original statement

schteve

http://www.redstate.com/curt_levey/2011/02/23/defense-of-marriage-act-obamacare-and-kagan/#comment-787

missyjanie

How audacious is a president that says to his DOJ, I don’t like that law, don’t enforce it?
America has always been a nation of laws, some get changed because they are not beneficial.
The point is, if the law is still on the books, no one man has the right to disregard it.
Why do gays feel it is so important to call their union a marriage? They aren’t going to have children. Call it a civil union, they get all the benefits of marriage, yet they don’t confuse the term marriage.
The real focus of this country should be on jobs and reducing our crippling deficit not who is sleeping with whom. Just another diversion.
He is playing us the fool once again.

schteve

Perhaps you want to rephrase your question.

throbertmcgee

If Congress decided that “Domestic Partnerships” or “Civil Unions” recognized by individual states should be treated as equivalent to Marriage for the purpose of federal benefits, then — Bibbity, Bobbity, Boo! — Civil Unions would confer all the federal benefits of Marriage.

Conversely, I might point out that Same-Sex Marriages recognized in such states as Massachusetts and Vermont currently get ZERO FEDERAL BENEFITS.

schteve

Were DOMA to be repealed or ruled unconstitutional, they would immediately warrant full federal benefits. Civil unions still would not.

Conversely, there’s no traction on proposed bills that would allow federal recognition of civil unions.

throbertmcgee

Because gay publications and gay websites constantly tell gay people over and over and over that “civil unions” are a mark of second-class citizenship, and that Separate Can Never Be Equal, and that settling for “civil unions” or “domestic partnerships” is an indignity akin to having separate drinking fountains for “whites” and “coloreds”, and “Rosa Parks didn’t ask to sit in the MIDDLE of the bus, did she?” and this is Jim Crow all over again, blah-de-blah-blah.

In short, it’s just kinda the “received wisdom” in the gay community that WE MUST HAVE THE WORD MARRIAGE, or else we’ll forever be downtrodden and oppressed.

controse

Obama. Surely refusing to enforce laws passed by Congress is an impeachable offense. If laws are not enforced are they really laws at all? Seem an unenforced law is nothing more than just a statement of intention by Congress. Surely it is not legal to not enforce laws. De facto veto is not in the Constitution is it? Didn’t our President swear an oath to uphold and defend the Constitution?

bogornes

…under certain circumstances. Here is a link:

http://hunterforjustice.typepad.com/hunter_of_justice/2009/06/when-does-justice-department-decline-to-defend-statutes.html

It was written in 2009. Since then there have been a raft of lower court decisions questioning the constitutionality of DOMA, which would bolster the DOJ decision to not defend.

phenne

Mental masturbation, that what I read.

If it is a fight over a millennium (or more) of civilized culture’s methodology of guaranteeing “our posterity” — then take it ‘head-on’.

Don’t be a wuss and nibble around the edges, slobbering that tiresome “living Constitution” crappola for us here.

Fight us face-to-face. Which ‘societal anchoring belief’ do you think will win?

schteve

Obama swore to defend the Constitution, which trumps any laws. Although his determination that DOMA is unconstitutional may be wrong, that doesn’t change the fact that he is acting with what he thinks is in accordance with the Constitution.

Choosing not to defend a law is nothing new. All recent presidents, both Democrat and Republican, have done it. See above for a discussion of this.

phenne

“See above for a discussion of this” does not mean anything of merit (cogent arguments) were proffered … just people spraying misinformation.

Cite examples, so we can “see for ourselves” —- but I doubt any can.

http://jhpruitt.blogtownhall.com/ kipling

As Rush pointed out today, imagine if President Palin had instructed the DOJ not to support the Roe v. Wade decision or Obamacare.

Why did Mr. Obama not attempt to repeal DOMA when the Democrats had control of both house of Congress? Why did he wait to now and do it with an extra-legal power grab?
runner12

This appears to me to be a gross overreach of the Executive Branch. Obama and Holder appear to be stepping all over the Legislative and Judiciary Branch.

Could this be grounds for impeachment or since it came from the DOJ would Obama be in the clear? Not trying to be extreme, but just curious.

bogornes

Short answer, No. There is clear precedent for not defending a law on appeal, if the DOJ determines that the law is unconstitutional. See the link up a few comments. That said, it would be hilarious if a Republican President refused to defend Roe V. Wade. (What’s good for the goose… .

runner12

has determined it unconstitutional? I can’t remember one time that any President did such a thing.

cycllyn

I am appalled by the arrogance of this Administration over this issue. It is his executive & Constitutional duty to carry out the laws of the land whether he likes a law or not. BUT this kind of Presidential nose thumbing began many years ago. My first recollection of this was by Andrew Jackson, when he told the Supreme Court to enforce their own decision, if they could. And he went right ahead and removed the Cherokee and other tribes off their legally deeded properties and onto the Trail of Tears. When you allow the camel to keep his nose under the tent, eventually he’ll wind up in the tent with you.
cycllyn

Andrew Jackson not only refused to enforce law, he refused to enforce the Supreme Court’s ruling. He got by with it. It was Constitutionally and morally wrong then as it should be wrong now. Creeping power and arrogance left unchecked will eventually come back to bite, no matter how seemingly insignificant it may seem at the time.
alamo294

it’s that the President doesn’t have the constitutional authority to declare any law unconstitutional.

Is this an impeachable offense? Just hoping . . . .
schteve

Obama isn’t trying to usurp the judiciary’s authority to declare a law unconstitutional or specify what merits a suspect class. A lawsuit against DOMA was filed in New York, which is in the Second Circuit Court of Appeals. The Second Circuit is one of the few with no current precedent for the level of scrutiny that should be afforded to sexual orientation. One of the things the court asked of the government, therefore, was what it thought the appropriate level of scrutiny was. This was the first time the administration had to consider this, and so it came to what it thought the right conclusion should be.

Now, while Obama certainly should be criticized for the actual conclusion he came to, he shouldn’t be criticized for doing something that a federal court asked the DOJ to do.

Now, as for some points in the original post:

“Of course, the authors of the Fourteenth Amendment would be quite surprised to learn that they had made same-sex marriage a constitutional imperative.”

The authors of the Fourteenth Amendment would be surprised to learn that they made interracial marriage a constitutional imperative too, especially since the Supreme Court unanimously ruled that anti-miscegenation marriage laws were perfectly fine just a mere fifteen years after the amendment became law.

“After abandoning DOMA, Obama has no moral authority to argue that, because ObamaCare is the law of the land, all government officials must enforce it unless and until the Supreme Court decides it?s unconstitutional.”

On the contrary, he can say just that without contradicting himself. Although he will not defend DOMA in court, he and Holder made it clear that they will still enforce DOMA until it is ultimately ruled unconstitutional. He would therefore expect all future government officials to enforce Obamacare even when they choose not to defend it in court.

runner12

anything, but I find it a little more than ironic that I heard the same talking points from an avowed liberal commentator.
ssshannon1026

The power to declare anti-miscegenation laws unconstutitutional is an open ended power to pretty much declare anything unconstitutional that our ruling elite don’t happen to much like…

I think there is a word for that kind of government – dictatorship. All of which is perfectly ok because, gee, they’ve dressed it all up in contitution.

ssshannon1026

is the most crucial tactic in the advancement of leftist principles. The more dysfucntional the society is, the greater the need for goverment involvement in holding everything together. Anything that allows a society to retain a self sustaining cultural cohesiveness has to be eliminated. Marriage is simply the latest instutition to be redefined in a way that simply removes it as a mechanism for non-political social cohesion. Government is defining our morality for us, and we have no choice but to accept their dictates.

nick2000

It seems that the prevalence of divorces (in short, well, I did not mean it when I took my vows “for the better or the worse”) or even annulment has a much bigger impact than the possibility of same gender people marrying.

It’s a bit like getting into a car crash and then worrying that the rain will dirty up your car…

Spiral

This isn’t really about homosexuality. Two men can have sex and society and the government need not care. No children are created through homosexual sexual activity.

But society and government should be concerned about heterosexual sexual activity because such activity has been known to create babies and babies need adults to raise them.

Since it is one man and one woman having sex together that created the baby, it makes perfect sense that marriage would be defined as a union of a man and a woman.
ssshannon1026

So, just to be sure I understand your logic – divorce is bad for society therefore homosexuality should be accepted? The two are only related in that they both serve to further destablize society.

So why is the divorce rate so high? Can you separate the increase in divorce rates from the general social chaos that has also been a part of the last 70 years of liberalization of our society? Are you absolutlely certain that there is no connection at all between the government’s overt decoupling the public institution in our society from the religious institutions that once provided the moral authority people were expected to observe and the increase in the divorce rate over that same period of time?

And, further, if you want to use the divorce rate to justify forcing our society to accept homosexuality as the moral equivalent of a loving heterosexual marriage, what further chagnes will you justify once that goal has been achieved? Is there a bottom somewhere that you think we are going to safely land upon?

nick2000

Freedom from religious institutions is good. It indeed freed women from control by men. Is that bad? I would connect the freedom of action to the divorce rate more than anything else. Certainly more than homosexuality.

Where do the changes lead us? I do not know but we can always adjust course on the way. You want to keep things the way they were? Well, the way they were “when”? Everybody might differ as to the “when” took place. Amish picked their time.

ssshannon1026

It leads to more direct government control over an ever less functional society. The notion that a society committed to no greater legal concept than the freeing of each individual from any sort of moral constraints is ‘evolving’ towards anything stable let alone ‘freer’ is a loony toons fantasy. It ain’t gonna happen. That is nothing more than deevolution back into an animalistic state of human culture.

The ‘civil’ part of civilization comes from force. That force can either exist as an inherent element within the culture itself, or it can be imposed from above by the government. But, one way or t he other, it has to exist for civilization to survive at all. As with all complex systems, it is in the inherent nature of human societies to become less stable over time. And, yes, that is a ‘natural’ process. But it is most certainly one that leftists (and Libertarians for that matter) use and intentionally exacerbate in working towards more state control.

As to ‘freeing women from men’, it simply is not possible to free people from one another and still have a civil society. Women will never be free of men and men will never be free of women in any society other than one with a government with an unlimited writ to enforce such a notion. The important thing is to enforce the notion at a non-political social level that both men and women are morally obligated to respect and defend the binding relaitionships they voluntarily enter into. One way or the other, I can assure you human civilization will return to that simple notion or it will cease to exist altogether.
phenne

n/t
phenne

… “picked their time?”

Huh?

RS

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