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Old 12-14-2012, 08:51 PM   #138
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Default Digest December 14, 2012 A Defining Case for Marriag

Digest December 14, 2012

A Defining Case for Marriage

"The foundation of national morality must be laid in private families." --John Adams

Marriage before the Court

The Supreme Court is set to hear a challenge against the Defense of Marriage Act (DOMA), a statute passed by Congress in 1996 to protect marriage (i.e., to define it as a contract between one man and one woman). The case comes along with an appeal of the Ninth Circus Court's decision striking down California's Proposition 8, itself an attempt by state voters to inoculate against looming legal onslaughts that challenge marriage in its traditional meaning. Marriage, of course, is the building block of society. Thus, this case is of the utmost importance.

While DOMA may not be the best course of action as far as constitutional law is concerned -- the Constitution is silent on the issue of marriage, thus leaving it to the states -- its passage is certainly understandable. The law both protects states from having to recognize marriages formalized in other states and defines marriage for the purpose of federal law, specifically taxes. The latter is the section under challenge, and, frankly, not without justification under the Tenth Amendment.

Redefining the institution is a slippery slope that could end up being wide-open, anything-goes "marriage" between any two -- or more -- "things," whether humans or not. But the Left thinks they hold the trump card of "rights." Never mind the government's interest in having clearly discernible lines to legal benefits for those qualifying as being "married." Never mind decades of past legislative decisions that will have to be re-examined in light of these new "marriages." Never mind the state's interest in ensuring children don't grow up in dysfunctional homes. Also abandon any notion that states should have a say in the matter under the Tenth Amendment. No, the Left's operative issue is "gay" rights, above all others, and that makes it a federal case, almost by definition.

Although the Constitution is silent about marriage, neither Congress nor the Obama administration has been. Since both the legislative and executive branches are constitutionally restricted to those powers specifically enumerated within that document, neither should have any say as to what the term "marriage" means. Such definitions and decisions -- in a perfect world, at least -- are best left to the individual states. Couples can "vote with their feet" if they are unhappy with a given state's legislative policy regarding marriage.

One of the Founders' original ideas behind federalism was allowing each state to experiment with legislative policy so that those whose policies that worked would serve as trail guides to other states whose policies ended in failure. Their intent was never that the federal government should be the across-the-board arbiter of controversial decisions made by a state or group of states. Unfortunately, today's activists, judicial or otherwise, don't care about the Founders' intent.

Expect the SCOTUS decision to be 5-4 one way or the other. We suppose we'll hear a distorted reading of the Equal Protection Clause, using terms such as "rational basis," "important" and "compelling" interests and the like, each utterly fraught with subjective bars to clear -- or not clear. We do hope, however, that the decision won't further erode our federalist system.
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