Blog post by ADF Senior Vice President; Senior Counsel Jordan Lorence

Wednesday the Senate Judiciary Committee heard testimony on a bill to repeal the federal Defense of Marriage Act (DOMA). ADF attorney Austin Nimocks testified against the bill and did an excellent job explaining the purpose of marriage in having children raised in the best social environment possible, one consisting of the child’s own biological mother and father who are united in marriage, and the importance of maintaining that common understanding of marriage in federal law. DOMA was signed into law by President Clinton in 1996 after being approved by huge majorities in both houses of Congress.

However, Democrats, including those on the Senate Judiciary Committee, now oppose DOMA, even though many of them voted for it in 1996 because they now support redefining marriage to include same sex couples.  Although the Democrats have a 53-47 majority in the Senate, it is uncertain whether this repeal could overcome a filibuster in the Senate, and it would not be approved by the Republican majority in the House of Representatives.  On Monday, President Obama said that he supported repeal of DOMA.

DOMA has two major parts.  One part allows states to decline to recognize a marriage consisting of a same sex couple that was legally entered into in another state.  The other major part of DOMA defines marriage only as one man and one woman for purposes of federal law.

I was able to assist Austin and watch the DOMA hearing at the Senate Judiciary Committee.  I offer several observations:

  1. The hearing hid the fact that the DOMA repeal could force all states to recognize same-sex marriages.

The Democrats who orchestrated this hearing cleverly directed its focus away from one of the major aspects of the DOMA repeal legislation that many would oppose – DOMA repeal would wipe out the provision that says states are free to decline to recognize same-sex marriages legally obtained in another state.  We would see same-sex couples who have obtained a marriage license in one of the few states where it is legal, come to one of the many states with a state DOMA, and argue in court that the second state must recognize their same-sex marriage license, even though same sex marriage is not legally recognized in the second state.

This gets into a complicated area of constitutional law concerning “full faith and credit.”  Generally, full faith and credit means this: If a court in State A enters a judgment, for example, that Mary owes Sam $2000, then Sam can go to State B to get a court order to take some of Mary’s assets there to pay the judgment.  State B cannot refuse to honor the court decision from State A under the Constitution’s Full Faith and Credit Clause. But how does that apply to marriage,  because a marriage license is not a court order?  Generally, states do not have to recognize licenses obtained in another state.  So, if someone in State A obtains a driver’s license, or a license to practice law, or a realtor’s license or a marriage license, State B has the discretion whether to recognize that license or not.

Whether the second state will recognize the license depends on what kind of license we are talking about. Most states generally recognize marriage licenses entered into in other states, so a man and a woman do not have to get married again when they move to another state.  In contrast, states generally require people to get new driver’s licenses and licenses to practice law if they move to another state. Federal DOMA made it very clear that a state recognizing only marriages of one man and one woman would not have to recognize a marriage license from another state obtained by a same-sex couple.  As a constitutional attorney, I am not exactly sure what the repeal of DOMA would mean for this area of law.  States might very well retain the power to decline to recognize marriage licenses from another state, because of the states’ general authority under our Constitution’s system of federalism.

The Senate hearing on Wednesday focused on couples who lived in the five states that have legalized same-sex marriage (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and on Sunday, New York, as well as the District of Columbia).  They had legal marriages under state law, but were not recognized under federal law.  However, the hearing barely mentioned that these couples could move, for example, to one of the 30 states with a state constitutional provision defining marriage only as one man and one woman, and challenging that provision.  In effect, this may be an effort to force all states to recognize same-sex marriage.  The hearing would have had a different tone if the Judiciary Committee had focused on this important effect of the proposed DOMA repeal.

    2. Many others besides same-sex couples have problems obtaining federal benefits, and Congress can fix the problems without redefining marriage.  The hearing consisted of a number of people who had obtained a marriage license in one of the states that has legalized same-sex marriage, and how they have had trouble obtaining federal benefits.  For example, one of the same-sex partners dies, and the surviving partner cannot obtain Social Security benefits that a married couple consisting of a man and a woman could obtain.

But the hearing did not explain that others have the same problem.  For example, a single person who is older and on Social Security benefits cannot pass his benefits to anyone  else when he dies, but a surviving married person could obtain the benefits of his or her deceased spouse.  Repealing federal DOMA would not help this single person pass his benefits to his niece or nephew.  His money would simply go back to the U.S. Treasury.  If a man is a federal worker and he cares for his sick grandmother, repeal of federal DOMA will not help him add her to his federal health insurance and he will not receive any Social Security money when she dies, because they are blood relatives who cannot marry. A woman who takes care of her adult brother with Down’s Syndrome must pay federal tax on the insurance coverage her employer extends to her brother.

Repeal of federal DOMA will do nothing to ease these unnecessary tax burden the brother and sister described above cannot legally marry anywhere.  The benefits issues should be addressed separately and Congres should enact solutions that help everyone with the problem, not just same sex couples.

Also, several legal challenges to federal DOMA are in courts around the nation.  The most advanced cases are in Massachusetts, pending before the U.S. Court of Appeals for the First Circuit in Boston.

Links:
1. Austin Nimocks written testimony
2. The entire DOMA hearing on c-span.
3. Youtube video of Austin Nimocks testimony and Q&A

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As others have pointed out, the Obama administration’s legal attack on the Defense of Marriage Act, which partially relies on the move to repeal “Don’t Ask, Don’t Tell,” lacks controlling legal precedent or persuasive moral reasoning.  That alone is sufficient reason to oppose it.  But the President’s use of DADT repeal to attack DOMA is wrong for two other important reasons.  When President Obama rammed repeal through the lame-duck Congress, he did so while relying heavily on the existence of DOMA to ward off many of the problematic implications of repeal.  Moral concerns about marriage and religious liberty, along with fiscal concerns about benefits and housing, were rejected as irrelevant because DOMA allegedly prevented many of them from materializing.  Effectively, Congress was told to accept DADT repeal based on DOMA’s authority, all while the President was just a month away from launching an unprecedented attack on DOMA as soon as he secured DADT repeal.

But the actual situation now is much worse than a regrettable tale of political shenanigans and hypocrisy.  The military’s attempt to brace service members for repeal—via painfully inadequate PowerPoint training slides—still relies on DOMA’s existence to answer many controversial problems.  Thus, our troops are having a radical change imposed on them during a time of war by a Commander-in-Chief who is training them to rely on a law that his administration is actively trying to subvert.  This is wrong.  Misleading Congress is one thing.  Misleading the men and women in harm’s way who must follow his leadership is a wholly indefensible other thing and should not be tolerated.  Congress should demand that the President explain his duplicity to it and stop his mistreatment of our troops.

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Recently the Washington Times featured an article that spotlights what ADF has been predicting for some time: using the forced acceptance of open homosexual behavior in the military (which has been disguised as “Don’t Ask, Don’t Tell” repeal) to attack the federal Defense of Marriage Act.  As we said then:

[P]erhaps the only institution more deeply respected and widely recognized as the training ground for inculcating societal values than the military is marriage.  And normalizing homosexual conduct in the military will not only—as an ACLU attorney recently stated—be a cultural precursor to normalizing homosexual “marriage,” it will actually create the perfect storm for destroying the primary federal law protecting marriage—the Defense of Marriage Act (“DOMA”).

Basically, it will go like this: a same-sex couple will get “married” in a state like Massachusetts. One or both members of the couple will be in the military, and will press for married couples’ benefits, like housing and medical coverage, arguing that the military cannot discriminate against homosexual “marriages.”  And when the military denies the request based on DOMA, that Service member will sue in a sympathetic federal court to get DOMA declared unconstitutional.  And, quite possibly, the only federal bulwark against a nationwide redefinition of marriage will be breached.  Sound far fetched?  The first part of the strategy is already happening: a soldier in a homosexual relationship applied for married housing just after Defense Secretary Gates announced the goal of repealing current policy.

The Obama administration’s startling duplicity since that prediction makes the strategy to attack DOMA via the military all the more clear.  In a recent letter to Congress, Attorney General Holder cited the move to force open homosexual behavior on the military as evidence that the time-honored and logic-based definition of marriage in the Defense of Marriage Act must be abolished as unconstitutional.  Mr. Holder’s Department of Justice then followed that radical position up by filing an anti-DOMA brief in ongoing litigation that even sympathetic observers have called “a gay rights manifesto.”

The President is using one time-honored preserver of our country—the military—to attack another—marriage.  Defenders of marriage, though, should not be surprised.  Marriage is so foundational an institution that it is related to most facets of life.  Thus, for instance, defending marriage also means defending religious liberty.  Now, due to the creativity of marriage’s attackers, it means defending the military itself.

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ADF Senior VP; Senior Counsel Gary McCaleb writes:

February 2, 1943:  the bitter chill of the North Atlantic suffused the dusk as an Allied convoy laden with troops and gear wallowed its way to Europe.  Those who could sleep did so uneasily; German submarines crept about nearby.

The first hour of February 3, 1943 would be the last hour for the transport ship Dorchester.  Minutes after midnight, the ship was gut-shot by a German torpedo.  Dark terror ensued—without power or lights, heaving in the winter seas, the 902 men aboard sought their salvation from the deep.

Only 230 would succeed. 

But from that horror emerged the remarkable story of four Army chaplains who acted with uncommon valor—steadying the panicked troops, guiding them to safety, urging calm amidst the chaos.  As the ship pitched in its death throes, the four handed their own life jackets to troopers who had none, and with that final act of grace they surrendered their lives for the sake of others. 

While the valor was uncommon, the will to serve was not – and the military properly honored the right of all chaplains to serve both as religious leaders and secular counselors.   But sadly, that high regard is now undercut by President Obama imposing open homosexual behavior on the military by repealing the so-called “Don’t Ask, Don’t Tell” policy.

Now, while the repeal is scarcely a done deal, military officials who prefer political correctness over moral courage began implementing some bizarre changes.  The breaking point came when the Navy ordered its chapels to be open to same-sex “marriages,” in defiance of the federal Defense of Marriage Act. 

Legislators swiftly responded and the Navy backed off—for now.  But the conflict between the impending military sexual “morality” and that taught by the vast majority of chaplains could no longer be hidden.

Indeed, the conflict prompted rare written protests from the Catholic  and Protestant chaplain endorsing agencies that supply the vast majority of chaplain candidates to the armed forces.

Their protest resonates with the spirit of the four sacrificial chaplains who were willing to serve whatever the cost, reserving only one thing:  “Chaplains have a tremendous moral responsibility to insure that when they preach, teach or counsel, they do so in accordance with their conscience and in harmony with the faith group by which they are endorsed.”

Bluntly put, chaplains cannot and will not sacrifice Christian truths at the altar of President Obama’s sexual politics—a reality that the President had fair warning of.  Now that the warning is becoming reality, Congress must act to protect the faithful service of the Chaplains, lest the military find itself on the wrong side of history in a war of morals.  Do your part and let your Senators and Representatives know of the endorsing agencies’ concerns while there is still time to act!

Visit “Faith Under Fire” to learn more about how the repeal of “Don’t Ask, Don’t Tell” threatens religious liberty.

ADF Senior VP; Senior Counsel Gary McCaleb writes:

A half a century ago, the United States lent a hand to the struggling nation of South Vietnam as its freedom was threatened by the Communist North Vietnamese regime and its Viet Cong allies. But by the mid-70s, the war whimpered to defeat: radical leftists won the day and the so-called “peace” movement forced American withdrawal and the inevitable, bloody collapse of South Vietnam.

Tens of thousands were slaughtered and more imprisoned in “re-education camps” as victorious Communists spread their brand of “freedom” through the land. And at the same time, thousands of freedom-loving South Vietnamese fled the country.

Most fled by boat, in harrowing ventures across the open sea to an uncertain fate—all the more uncertain as would-be host nations often turned back the “boat people,” or made their lives intentionally miserable to discourage others.

Among those refuges was 10-year-old Viet D. Dinh, who, through Providence and perseverance, found himself in America—and more amazingly, not living from hand to mouth but serving his new homeland as the senior partner in the esteemed firm of Bancroft Associates.

So what does a former “boat boy” turned attorney have to do with saving marriage? The answer is rooted in President Obama’s flip-flop on marriage, where he abandoned his campaign promises and decided that marriage between one man and one woman is somehow unconstitutional—then told the Department of Justice stop defending the Defense of Marriage Act. In response, the House of Representatives acted to defend DOMA itself.

To that end, House leaders hired Paul Clement, a noted Supreme Court lawyer at the “big law” firm of King and Spalding, to present the case for marriage in court.  But within a few days, homosexual activists leaned on the firm so hard that it turned tail and bailed out of the case.

But Mr. Clement did not flee with his firm. Instead, he resigned his position so that he may continue to represent the House and give voice to the pro-marriage arguments. And he did so as firmly as he did graciously, in a letter of resignation that profiles moral courage.

But a lawyer alone is still a lawyer alone. On a case like this, he needs help—a host of professional colleagues—with whom to go to war.

And with delicious, made-in-America irony, it was a refugee from the war lost by the American left—Mr. Viet D. Dinh—who welcomed Paul Clement to Bancroft Associates—who will be his “band of brothers” in this battle against the left’s effort to redefine marriage.

ADF commends Paul for his principled decision, and honors Mr. Dinh for enabling the defense of marriage—that unique bonding of a man and a woman, hopefully for life, that provides the procreative potential and nurturing that undergirds every civilization. Defending marriage is a high calling—and it certainly looks like the best and brightest have answered that call!

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