I know, I know -- there's part of you that actually wants this Congress to be powerless. Trust me, I understand.
But when judges weave their own prejudicial arguments and violate any semblance of intellectual honesty in order to achieve their desired objectives, democracy is undermined. More simply put -- when judges do what they want rather than what reason and the Constitution demand, your vote matters far less than it should.
The origins of the case go back to 1996 when Congress, in response to what it viewed as increasing judicial activism, sought to reinforce the legal definition of marriage as being between one man and one woman. And, of course, in passing what is known as the Defense of Marriage Act (DOMA) Congress was saying that there is no other legitimate definition under the law.
On July 8th, Judge Joseph Tauro ruled on two separate challenges to the federal Defense of Marriage Act -- one brought by the state of Massachusetts and the other brought by same-sex couples in the state. In his ruling, Judge Tauro held that there was no "rational basis" for limiting marriage to a man and a woman, thus finding it to be "irrational prejudice" in violation of Equal Protection.
And here's where Tauro's own intellectual dishonesty comes in to play; for in order to reach his conclusion Tauro had to completely and blatantly ignore Congress's stated rationale for the law. Congress was actually quite clear in its reasoning, and any honest person and seeker of the truth, whether they agree with that reasoning or not, would have to go to great lengths to argue otherwise.
The fact is that Congress gave four very clear reasons for passing DOMA: encouraging responsible procreation and child-bearing, defending and nurturing the institution of traditional heterosexual marriage, defending traditional notions of morality, and preserving scarce resources.
It is well within anyone's right to disagree with any or all of those points, but it's dishonest to say that Congress did not have a rationale for passing the act. More to the point, it's out of order for an unelected official to assume the responsibilities of our elected officials. For Judge Tauro, his personal biases -- which is mostly what the decision amounts to -- trumps the will of our elected Congress.
Hadley Arkes, a professor of jurisprudence at Amherst College, points out that "Tauro simply begins by presupposing the legitimacy of same-sex marriage and the 'irrational prejudice' of anyone who would deny it," but never engages in any reasonable argumentation to prove his point.
Additionally, the judge spends a large portion of his opinion showing all of the benefits that would be denied to same-sex couples in the federal government. But again, as Arkes points out, it is one thing to say that benefits are being withheld, but it is quite another thing to make the case that those benefits are withheld wrongly and without justification. But Judge Tauro makes no rational case of his own, while ignoring altogether the rational case set forth by Congress.
Congress did indeed have a rational basis for passing DOMA, just as, until recently, every society in history has believed it had good reason for awarding a special and lofty status to the relationship between husbands and wives. And, with rare exception, they did so not to discourage other forms of relationship, but simply to encourage a special kind of relationship that was absolutely vital to the common good and social order.
Think about it. Humanity has always known a wide variety of deep, meaningful and valuable relationships. Strong ties have developed between siblings, immediate and extended family members, co-workers, and childhood friends who grow into lifelong friends, just to name a few. And yet, of all these meaningful relationships, historically speaking, we've only called one of them "marriage" -- the relationship between men and women who, by virtue of their close relationship, are likely to produce children, tomorrow's citizens. And therein rests the reason for DOMA.
Elevating male-female marriage to its preeminent place is not a negative step taken to demean other forms of relationships, it is a positive step taken to encourage family formation and to connect more firmly, through law and culture, fathers to their children. Modern research -- reams of it -- has confirmed this impulse to protect children by favoring marriage.
But Tauro's decision ignores all of this - all the research and all the rationale. And he did so because of his own prejudice, not the prejudice of others.
His decision ignored all of that for another reason: the Obama administration chose not to perform its duty. It is the responsibility of the president and his administration to uphold laws passed and enacted by Congress. And when such a law is challenged in court, it's the responsibility of Department of Justice (DOJ) to defend the law. In this case, the administration's lawyers, under Solicitor General Elena Kagan, "disavowed Congress's stated justifications," according to Judge Tauro.
So a major reason why the judge found no rational basis for DOMA is that Kagan and DOJ chose not to do its job. Breathtaking. It would be malpractice for a private attorney to act in such a way. It shows striking disrespect for Congress, the separation of powers and the rule of law. Frankly, it looks like a clear attempt to throw the case.
When judges usurp Congress by asserting their own ideas over the legitimate acts of elected legislators, our democracy is diminished. Rigorous debate over the legal and cultural definition of marriage is worth having. However, the debate should be done honestly and constitutionally.
Randy Hicks is president of Georgia Family Council. Georgia Family Council is a nonprofit research and education organization committed to fostering conditions in which individuals, families and communities thrive. For more information, go to www.georgiafamily.org, 770-242-0001 or stephen.daniels@georgiafamily.org.