March 28, 2013
(Part II of two parts)
Weak Advocates of Traditional Marriage
By Mike McManus
I was unimpressed with the quality of arguments made in the
Supreme Court this week on behalf of traditional marriage by
lawyers hired to oppose same-sex marriage (SSM).
When asked why he opposed SSM by Justice Elena Kagan, Charles
Cooper said he was concerned that “redefining marriage to – as a
genderless institution could well lead over time to harms to
Kagan asked “What harm?” He stammered so incoherently Justice
Anthony Kennedy interrupted, “Are you conceding that there is no
Cooper replied, “Redefining marriage will have real-world
consequences, and that it is impossible for anyone to foresee
the future accurately enough to know exactly…”
Huh? What could he have said?
How about this: “More than 7 million Californians voted for
Proposition 8 that put into the state’s constitution: “Only
marriage between a man and a woman is valid or recognized in
California.” They did so in 2008 when the state gave Obama a 24%
margin over McCain.
“A Democratic state that voted heavily for Obama believed that
marriage is the union of husband and wife for a reason: these
unions can make new life and connect children to the mother and
father who made them. Every child deserves a mother and father –
which is impossible in same –sex marriage. Their opinions
Then he could have asserted, “The Federal judge who invalidated
Prop 8, is an active homosexual living with another man.
Therefore he should have recused himself from the case before
arrogantly overturning the vote of 7 million people by his
single vote, and promptly retiring.”
On Wednesday the issue being debated was the Defense of Marriage
Act (DOMA) which states that in federal law “the word `marriage’
means only a legal union between one man and one woman as
husband and wife.” Edith Windsor filed a suit against the law.
She lived with a female partner for four decades before marrying
in 2007. The partner died in 2009 and bequeathed her substantial
estate to Ms. Windsor.
Had her partner been male, there would have been no federal
inheritance tax. But she had to pay $363,053 in taxes because
the two women were not married according to DOMA.
Justice Sonia Sotomayor challenged Paul Clement who was
defending DOMA, saying “So they (Congress) can create a class
they don’t like – here, homosexuals” who “they consider is
suspect in the marriage category” and “decide benefits…when they
themselves have no interest in the actual institution of
Clement responded, “I’m not suggesting that the Federal
Government has any special authority to recognize traditional
Incorrect. That’s exactly what Congress was doing when it passed
DOMA in 1996.
Hawaii’s Supreme Court had ruled that the denial of marriage to
a SSM couple was discriminatory and ordered a lower court to
reconsider. Clement correctly noted that Hawaii is “a very nice
place to go and get married. And so Congress is worried that
people are going to go there, go back to the home jurisdictions,
insist on recognition in their home jurisdictions of their
same-sex marriage in Hawaii.” The result could be “same-sex
marriage is basically going to be recognized throughout the
In DOMA, Clement said Congress asserted, “Let’s take a timeout
here. This is a redefinition of an age-old institution. Let’s
take a more cautious approach where every sovereign (state) gets
to do this for themselves.”
What Clement should have added is that one provision of DOMA is
not under challenge, that no state can be forced to recognize a
same-sex marriage of another state.
He should have also noted that DOMA was passed in 1996 by
overwhelming votes of 342-67 in the House and by a stunning
85-14 in the Senate. Even Senators Joe Biden and Harry Reid
voted Yes. And Bill Clinton signed it six weeks before the
Presidential election. Had he vetoed it Bob Dole would probably
have been elected.
DOMA was a reaffirmation of traditional marriage. Hawaii has
still not legalized SSM 17 years later. While nine states have
done so, 41 states still support traditional marriage.
What will the Supreme Court do?
The key swing vote is that of Justice Anthony Kennedy. In the
Prop 8 case, he said, “There are some 40,000 children in
California…that live with same-sex parents, and they want their
parents to have full recognition and full status.” On the other
hand he said the court was in “uncharted waters” and questioned
whether the Court should have accepted the case.
My prediction: the Court will allow lower court rejection of
Prop 8 to stand, but won’t uphold SSM’s constitutionality. And
it will overturn DOMA so federal benefits will go to SSM couples
in states legalizing it.
Caution is warranted.
30+ Years / 1700+ Columns
2017: Column 1861: Cohabitation: A Growing Problem - Part II
Cohabitation: A Growing Problem - Part I
Texting While Driving - A Killer
Why Have "Religious Nones" Tripled?
Norma McCorvey Roe of Roe v. Wade
The Worst Valentine: Cohabitation
Pornography: A Public Health Hazard
Christianity Gives Women Equal Opportunity
Sextortion Kills Teens
Assisted Suicide Is Growing
same sex marriage,
abortion and infanticide,