The full Senate Judiciary Committee met today to consider a proposal to repeal the 1996 Defense of Marriage Act (DOMA).
DOMA was passed by both houses of Congress by overwhelming margins—with majority support from both major political parties—and was signed into law by President Clinton, whose Department of Justice repeatedly argued that the legislation was fully constitutional.
However, the new proposal—known as the Respect for Marriage Act of 2011—would not restore the law to its condition pre-DOMA; rather, it would affirmatively require the federal government to recognize the validity of, and accord marriage benefits to, any current or future relationship recognized by a state, including polygamous and polyamorous unions.
In the 15 years since the enactment of DOMA, the people of 31 states have voted on measures that strengthen existing legal presumptions that marriage represents the union of one man and one woman. Few if any issues in public life have received comparable attention in the form of initiatives, referenda, or other broad indicia of popular opinion. The result to date has amply reaffirmed the core meaning of marriage as a natural and pre-political institution that is no “mere creature of the state” but a relationship grounded in the physical reality of the two sexes and oriented, by societal reinforcement, toward the begetting, bearing, and raising of future generations.
In the privacy of the ballot box, voters continue to show more respect for the time-honored meaning of marriage than they do in other settings, where personal intimidation and taunts of bigotry predominate. Americans sense that marriage is an institution uniquely situated to combine and maximize the private goods of fidelity and a shared life with the public and intergenerational goods of family and community life.
President Obama also indicated yesterday that he supports repeal of DOMA and its replacement with the Respect for Marriage Act. With this additional step, the Obama Administration’s “evolution” on the question of redefining marriage is approaching Drosophila-like proportions—there is something new every two weeks. Coming on the heels of its lax legal advocacy for DOMA in federal district court and its recent court filing attacking the law in the Golinksi case, the President’s stated support for marriage as the union of a man and a woman has the air of Brutus at the funeral of Julius Caesar: His love for the institution will not prevent him from presiding over its demise.
The hearing today has one virtue. It shows that the issues at hand can be debated and voted upon, that elected representatives can stand for propositions in which they believe and be accountable to the electorate for the decisions they make. This is especially important on proposals to rework a fundamental institution of civil society that functions for the twin causes of human happiness and limited government. Judicial bodies that feel tempted to intervene in such debates and overturn marriage should observe this process and operate with maximum self-restraint.