RSSConservatives Better Watch The Rhetoric Over Obama And DOMA
J.J. Jackson | February 27, 2011
This past week President Obama and his Justice Department announced that, despite having done so for two years, they were no longer going to defend the Defense of Marriage Act against court challenges. They claim that now, again after two years of defending it, they cannot find any Constitutional authority for the act and find it unconstitutional. And segments of the Conservative talk and blog community are going bonkers.
The Defense of Marriage Act (DOMA), passed and signed under the Clinton Administration, allows states to reject within their own borders the laws of other states that allow for homosexual marriage. This upsets homosexual activists who think that they have the ability to, with the stroke of a pen in Massachusetts, rewrite the definition of marriage nationwide. Their argument is that Article IV of the Constitution permits one state to rewrite the laws of all states because Section 1 states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
However, if we look at history, we see that this is not how the clause was used by those that actually wrote it. Slavery, for example, was outlawed in many states but other states were still allowed to practice it. If the Full Faith and Credit Clause were used as those that support homosexual marriage today want it to be, then slavery, once outlawed in one state, would have been outlawed in all states. However we know that it did not work that way.
So the argument that because one state allowing the impossible act of homosexual marriage (since marriage is not between a man and a man nor a woman and a woman by definition) then means that homosexual marriage becomes legally binding in another state that has laws against such acts becomes frivolous. Besides, if one state passes a law against homosexual marriage then, by the same argument of those that want to make homosexual marriage legal in all states because one state allows it, then homosexual marriage would be outlawed in all states. After all the public act of the state that outlaws homosexual marriage would have to be given “full faith and credit” in all other states. Would it not?
It is a Mexican standoff. But people who want so badly to make marriage mean whatever they want, be it between a man and a man, a woman and a dog or even a man and his house, ignore flip side of this argument that causes this problem to arise because they simply know that they do not have an intellectual argument to dispute it.
Instead, again as history teaches us, the Full Faith and Credit Clause of the Constitution was used to say that, in the case of slavery, if a slave escaped and fled to a state that did not allow slavery that the slave had to be returned even though he or she had escaped to a state that did not allow slavery. Although many times this extradition was fought against, this was what the Fugitive Slave Act of 1850 codified. It applied the Full Faith and Credit Clause to mean that just because Georgia allowed slavery, Pennsylvania was not required to do the same. What it said was that Pennsylvania had to return runaway slaves from Georgia to Georgia and respect Georgia’s laws.
Applying the same logic to homosexual marriage. Just because a homosexual couple gets married in Massachusetts then moves to Texas it does not mean that Texas has to accept homosexual marriage and grant them the same rights they did in Massachusetts. All the Full Faith and Credit Clause says is that Texas must recognize that in Massachusetts this homosexual couple is indeed married.
DOMA, at its most basic, reinforces this principle I have discussed. Of course every who reads my work regularly knows that this whole problem arises from the facts that states, in the first place, meddle in the religious institution of marriage. This meddling with marriage’s definition is why I am against DOMA and have myself questioned its constitutionality in the first place although I understand why legislators were forced to pass it by those trying to rewrite the definition of marriage. And this, as well as those I laid out previously, are the best arguments that conservatives need to be making because it completely discredits the basic foundation of the homosexual activists own arguments.
But beyond all this I have to warn conservatives to be careful in their howls about President Obama’s reasoning for not defending DOMA. He says that it is unconstitutional and therefore that he cannot defend it. Conservative commentators, not using their brains, claim that this sets a dangerous precedent because the President must enforce the law. DOMA being a law means that President Obama must support then support it.
Therefore, the argument goes, if Congress passes a law and that law has not been overturned by a court as being unconstitutional, then the President must support and defend it. But the President, as specified in Article II, Section 1, takes an oath as follows, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
What happens when Congress passes a law that contradicts the Constitution? Is the President then required to violate his oath? That would be silly. It would be stupid. It would be intellectually dishonest. Say the Democratically controlled Congress in 2007 decided to pass a law that re-instituted race based slavery within the United States? I have to pick Democrats to pass such an idiotic law since throughout the history of this nation it has been the Democrats who openly and unapologetically supported such acts. Would President Bush have been required to enforce that law? According to the arguments of some vocal conservatives the answer would be yes.
Spare me. Because the correct answer is no. It is no because such a law would conflict with the Constitution as amended to outlaw race based slavery. But I doubt that some of the voices loudly denouncing President Obama’s acts on this ground will understand this simple truth.
They have staked their claim on this argument when better arguments, which actually prevent the same things DOMA was put into place to prevent, already exist. DOMA was an unnecessary law based on the points I put forth previously about what the Full Faith and Credit Clause actually meant. But for some reason a great deal of people who make their lives talking have talked themselves into believing that the President must blindly adhere to a law without examining its Constitutionality in his own and possibly violate his oath of office by doing so should the law contradict the Constitution.
Furthermore, if the President is required to blindly adhere to a law that he thinks, rightly or wrongly, is unconstitutional, then aren’t members of Congress under the same requirement? Obamacare is the law of the land even despite its clear unconstitutionality. Right now in Congress however the Republicans are attempting to defund it having been stonewalled in the Senate by anti-Constitution Democrats like Harry Reid. By acting to defund a law on the books they are basically refusing to enforce, defend and implement that law. They are doing exactly with Obamacare what President Obama is doing with DOMA.
So if President Obama is in the wrong then so too wouldn’t the Republicans in Congress also be in the wrong? Or is one OK while the other is wrong because you agree with the later but not the former?
This is the problem of a Representative Constitutional Republic with three co-equal branches of government. Maybe if we all stopped playing politics and just simply agreed to abide by the clear meaning of the Constitution, instead of warping it for political gains as liberals do, we could make some real progress around here. The problem is though that liberals won’t stop warping our Constitution for political gains. Which puts us in the very situation we are today.
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J.J. Jackson is a libertarian conservative author from Pittsburgh, PA who has been writing and promoting individual liberty since 1993 and is President of Land of the Free Studios, Inc. He is the Pittsburgh Conservative Examiner for Examiner.com. He is also the owner of The Right Things - Conservative T-shirts & Gifts. His weekly commentary along with exclusives not available anywhere else can be found at LibertyReborn.com (Digital Fingerprint: libertyreborn123456789)
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One Response to “Conservatives Better Watch The Rhetoric Over Obama And DOMA”
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Perfect summary. Limbaugh and Hannity are really dropping the ball on this one! They need to read this!