In February, President Obama instructed the Justice Department to stop defending in federal court the 1996 Defense of Marriage Act (DOMA). This act specifies that under federal law marriage is to be understood exclusively as the a legal union between one man and one woman and decrees that no state would be required to recognize as a marriage a same-sex relationship considered a “marriage” in another state. According to Attorney General Eric Holder, the President’s rationale for no longer defending the law was because he deemed section 3 of it unconstitutional, the section that states, “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
In other words, President Obama, a constitutional law professor who during the campaign repeatedly affirmed that he supported the traditional definition of marriage, is now claiming that DOMA’s definition of marriage as the legal union of one man and one woman is contrary to the Constitution. Not only was he apparently unaware of this unconstitutionality three years ago, but also it must have totally eluded all 85 Senators and 342 Congressmen from both parties (many of whom are lawyers) who overwhelmingly supported it in 1996, not to mention President Clinton (a Yale Law School graduate) who signed it into law.
It was alarming enough when President Obama chose to ignore his oath of office and neglect his constitutional responsibilities faithfully to execute and defend the laws of the United States. Over the summer, however, his administration decided to go a step further, filing legal arguments to have DOMA struck down by the federal courts as a form of unconstitutional sexual orientation discrimination. In a court case against the U.S. Office of Personnel Management, the Department of Justice filed a brief arguing that support for the traditional definition of marriage — which is based on recognizing the sexual complementarity between man and woman as a defining and worthwhile component of marriage — constitutes an unconstitutional animus that harms a vulnerable class of people.
Archbishop Timothy Dolan of New York, the President of the United States Conference of Catholic Bishops, brought news of this troubling shift in the administration’s policy to the attention of Catholics throughout the country in a “respectful, but frank” public letter released on September 20. Archbishop Dolan made the missive public because neither President Obama nor any member of his administration had responded to two private letters sent to him by Archbishop Dolan and his predecessor at the USCCB, Chicago Cardinal Francis George.
Archbishop Dolan told President Obama that he was writing “with a growing sense of urgency” because of recent actions taken by the administration “that both escalate the threat to marriage and imperil the religious freedom of those who promote and defend marriage.” He noted with concern the administration’s “intensification of efforts” to undermine DOMA and the institution of marriage, stating, “The Justice Department has shifted from not defending DOMA — which is problem enough, given the duty of the executive branch to enforce even laws it disfavors—to actively attacking DOMA’s constitutionality.” He said that he, his fellow bishops and Catholics “cannot remain silent… when federal steps harmful to marriage, the laws defending it and religious freedom continue apace.”
Archbishop Dolan noted that the administration’s actions “contrast sharply” with the President’s “excellent” 2011 Mother’s Day and Father’s Day proclamations. In the Mother’s Day proclamation, the President acknowledged “the extraordinary importance of mothers in our lives” and affirmed that “mothers are the rocks of our families and a foundation in our communities.” In his Father’s Day declaration, President Obama called on all citizens, as a national priority, “to recommit to supporting fatherhood in our families, in our communities, and across our Nation,” observing that a father’s absence “is felt by children, families, and communities in countless ways, leaving a hole that can have lasting effects.”
Archbishop Dolan commented, “In these perceptive and heartening statements, you correctly emphasize the critical role played by both a mom and a dad in a child’s life. … The Mother’s Day and Father’s Day proclamations display a welcome conviction on your part that neither a mom nor a dad is expendable.” The Church’s teaching on the importance of marriage, as well as the very active movement in the country in support of marriage as the institution of one man and one woman, are based, the Archbishop said, on this conviction that “every child has the right to be loved by both a mother and a father,” a belief that he says President Obama’s Mother’s and Father’s Day proclamations imply that the president shares. Institutional situations that treat as a positive good a home in which a father or a mother is by definition absent — as occurs by government promotion of marriage or adoption by same-sex couples — contradict this rational principle and much-documented finding about the importance of both a mother and a father in the upbringing of children.
Such a position, however, is now being treated in the Justice Department’s hostile and aggressive attacks on DOMA as unconstitutional bigotry. Archbishop Dolan indicated that it is “particularly upsetting” that in court documents and institutional policies the Administration “attributes to those who support DOMA a motivation rooted in prejudice and bias. It is especially wrong and unfair to equate opposition to redefining marriage with either intentional or willfully ignorant racial discrimination, as your Administration insists on doing.” As an analysis prepared by USCCB staff argued, “The Justice Department’s position denigrates the considered judgment of the American people. In every state where citizens have been allowed to vote on state constitutional versions of DOMA, twenty-nine states in all, voters by sizable majorities have affirmed marriage as the union of a man and a woman. A total of forty-one states have statutory or constitutional DOMAs on the books. Equating the approval of these state laws with racial bias wrongly treats the millions of voters in those states as if they were bigots, who refuse to redefine marriage only out of hostility against those who experience same-sex attraction. It falsely imputes the same supposed bigotry and hostility to the substantial, bi-partisan majorities in Congress—and to President Clinton—who were responsible for the passage of DOMA only fifteen years ago.”
Archbishop Dolan suggested that the way to end one alleged bias is not by federally enshrining an obvious one, raising a moral disagreement up to a a constitutional violation. “Our federal government should not be presuming ill intent or moral blindness on the part of the overwhelming majority of its citizens, millions of whom have gone to the polls to directly support DOMAs in their states and have thereby endorsed marriage as the union of man and woman. Nor should a policy disagreement over the meaning of marriage be treated by federal officials as a federal offense—but this will happen if the Justice Department’s latest constitutional theory prevails in court. The Administration’s failure to change course on this matter will … precipitate a national conflict between Church and State of enormous proportions and to the detriment of both institutions.”
The USSBC analysis specified the foreseeable damages of a failure to change course. “Based on the experience of religious entities under some state and local governments already, we would expect that, if the Administration succeeds, we would face lawsuits for supposed ‘discrimination’ in all the areas where the Church operates in service to the common good, and where civil rights laws apply—such as employment, housing, education, and adoption services, to name just a few. Even if religious entities prevail in such cases, we will face an additional layer of government punishments, such as the cessation of long-standing and successful contracts for the provision of social services, and other forms of withdrawn government cooperation. Society will suffer when religious entities are compelled to remove themselves from the social service network due to their duty to maintain their institutional integrity and not compromise on basic moral principles.”
For all these reasons, Archbishop Dolan urged President Obama to “push the reset button” on his administration’s approach to DOMA and “end its campaign against DOMA, the institution of marriage it protects, and religious freedom.” If the administration doesn’t, then the large majority of Americans whose thoughts on marriage would now get them branded as bigots under federal policy may feel little alternative that to try to rise up in a year and press the reset button on the administration.
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