You wouldn't know it from the nightly news shows or secular news sources, but the The Defense of Marriage Act (DOMA) is still standing. Contrary to the impression left by mainstream media reports, the central provision
of DOMA is still the law of the land. States like Missouri still have the protection of DOMA to ensure state sovereignty in the preservation of their longstanding traditional marriage laws.
Section 2 of the Defense of Marriage Act, which was adopted by Congress in 1996, stipulates that states are not obligated to grant legal recognition to same-sex unions which have been legally sanctioned in another state. Section 2 says that "no state...shall be required to give effect to any public act, record, or judicial proceeding of any other state...respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state..."
While the U.S. Supreme Court recently struck down another provision of DOMA, Section 2 of the Defense of Marriage Act was never even legally challenged. And Section 2 is the backbone of DOMA. With it, states retain the authority to define the institution of marriage as their citizens and elected officials decide. Without it, state marriage laws become irrelevant.
Without Section 2 of DOMA, Missouri residents could go out of state and enter into a same-sex union, and then return to the state and demand that it be legally recognized. Such individuals would assert their rights
under the "full faith and credit clause" of the U.S. Constitution. That clause, contained in Article IV of the Constitution, states that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."
Section 2 of DOMA currently restricts the scope of the "full faith and credit clause" when it comes to marriage. Without it, the marriage laws of Missouri and every other state would be of little consequence. Marriage in Missouri would be defined by the actions of every other state.
Because of Section 2 of DOMA, Missouri laws governing marriage remain in full force and effect. Missouri's Constitution (Article I, Section 33) says "that to be valid
in this state, a marriage shall exist only between a man and a woman." Missouri state law (section 451.022) says that "a marriage between persons of the same sex will not be recognized for any purpose in this state even when valid where contracted
What the Supreme Court did strike down was Section 3 of the Defense of Marriage Act. This provision defined marriage for the purposes of federal law as "a legal union between one man and one woman as husband and wife." Congress directed that this definition would
apply to any act of Congress, or any ruling or regulation of federal agencies or departments.
In a 5-4 decision, the High Court ruled that the federal government must recognize the definition of marriage established by each respective state when it comes to the application of federal law. The Justices asserted that "regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the states."
The Supreme Court concluded that Section 3 of DOMA "forces same-sex couples to live as married for the
purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect."
The High Court went further to declare that Section 3 of DOMA is an unconstitutional "deprivation of the equal liberty of persons that is protected by the Fifth Amendment." That amendment reads in part that "no person shall...be deprived of life, liberty, or property without due process of law."
Much of the opinion, authored by Justice Anthony Kennedy
, reads like highly rhetorical social commentary, as opposed to studied constitutional adjudication. Justice Kennedy (joined by Justices
Ginsburg, Breyer, Sotamayor, and Kagan) argues that the purpose of the law was to impose "disapproval," "disadvantage," and "stigma" on same-sex couples. This is twisted logic, since the purpose of the law was to preserve the historic definition and meaning of marriage and the family.
In language similar to his infamous opinion in Romer v. Evans
, Justice Kennedy asserts that the desire of Congress was to "harm a politically unpopular group" and impose "disabilities" on them. This is a comical claim, considering that the Defense of Marriage Act was adopted with widespread support of both Republicans and Democrats (85-14 in the Senate, 342-67 in the House) and signed by President Bill Clinton.
In a vigorous dissent, Justice Antonin Scalia said that the law merely "[codified] an aspect of marriage that had been unquestioned in our society for most of its
existence...and been unquestioned in virtually all societies for virtually all of human history...It is one thing for a society to elect change. It is another for a court of law to impose change by adjudging those who oppose it [as]...enemies of the human race."
"To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions," Scalia added.
Legal scholars point out that the High Court's legal reasoning leaves no barrier to federal acceptance of yet further redefinitions of marriage and the family. "What if states were to recognize polygamists' marriages?" asks Paul Linton, special counsel for the Thomas More Society. "Under the rationale of this ruling, those marriages would have to be given federal benefits.
In eager response to the ruling, the Obama Administration has announced they are going to expand the Supreme Court's ruling to extend health care and retirement benefits to same-sex "spouses" of federal employees regardless of their state of residency. It is expected that over 1100 federal laws and regulations may be impacted by the High Court DOMA decision.
The homosexual rights movement is now plowing full steam ahead to repeal the Defense of Marriage Act altogether. Congressman Gerrold Nadler of New York and Senator Dianne Feinstein
of New York have introduced companion bills to erase Section 2 of
DOMA. The bills are deceptively named the "Respect for Marriage Act." At last count, the House bill had 161 sponsors, and the Senate bill had 41.
We urge you to contact your Congressman in Washington, D.C., and strongly urge them to oppose any effort to repeal the Defense of Marriage Act. You can do so by using this link:Your U.S. Representative
Tony Perkins, President of the Family Research Council, had this postscript on the Supreme Court DOMA ruling: "The Court can declare same-sex 'marriage' a legal right in the eyes of government, but judges cannot make it morally right in the hearts of the people. This is an institution that carries God's own signature. Even absent any faith, the natural order proves the only
successful model for civilization is natural marriage...The reality is that society needs children and children need a mom and a dad."
Forty years ago, the Supreme Court tried to make abortion morally right in the hearts of the people through the Roe v. Wade
decision. Thankfully, they failed in abysmal fashion. They will fail in similar fashion on this foundational issue of marriage so long as Americans pay more heed to the Supreme Ruler than they do the Supreme Court. Time will tell where this nation's true affections reside.