More amicus briefs filed: Eagle Forum, Liberty Counsel — in support of Obama DOJ DOMA defense

Posted on 27 Jan 2011 at 11:14am

More amicus briefs filed: Eagle Forum and Mat Staver & Bam Bam’s Liberty Counsel — in support of the government’s DOMA defense in Gill et al. v. Office of Personnel Management et al. From Gay & Lesbian Advocates & Defenders (GLAD):

We have received amicus briefs on behalf of DOJ from Eagle Forum, the American College of Pediatricians, and one from the attorneys general of Indiana, Michigan, Utah, Colorado, and South Carolina.

Also up are the briefs from the Pacific Justice Institute and the Foundation for Moral Law. From the Liberty Counsel brief, an attempt to say Loving v. Virginia is not a legitimate comparison to refer to when considering the legalization of same-sex marriage.

Loving v. Virginia is readily distinguishable.

The District Court’s reliance on Loving v. Virginia, 388 U.S. 1 (1967), as evidence that Congress lacks authority to define marriage for purposes of federal laws is misplaced. (Op. at 7-8). To support its conclusion that Congress lacked authority to define marriage in DOMA, the District Court stated that prior to Loving, when some states prohibited interracial marriages, the federal government relied on state law definitions of marriage for purposes of federal law. Not only does this fail to address the other federal statutes mentioned above that defined marriage, it also ignores a critical distinction between the situations when, on the one hand, a state law definition of marriage is more restrictive than a federal definition of marriage (as in the instance of the state bans against interracial marriage), and, on the other hand, a state law definition is more expansive than a federal definition that incorporates the longstanding common law definition of marriage as the union of one man and one woman.

As the Supreme Court ultimately and correctly held in Loving, it constitutes unconstitutional discrimination to prohibit interracial marriage. Prior to Loving, the federal government accepted the state definition of marriage for purposes of many federal statutes from those states that prohibited interracial marriages. Although no state should ever have prohibited such marriages, there are at least two reasons why the federal government might have relied on the state law definitions for purposes of federal statutes even when the state definitions unconstitutionally prohibited interracial marriages.

First, none of the marriages presented to the federal government for recognition was inconsistent with the longstanding definition of marriage as the union of one man and one woman. Thus, while all the marriages allowed by the state fit the longstanding common law definition of marriage, the state’s definition included fewer marriages than would be accepted by the federal government. In other words, the federal government was not asked to acknowledge as a valid marriage anything that was inconsistent with the longstanding common law meaning of marriage as the union of one man and one woman. Second, the interracial couple could relocate to another state that permitted interracial marriage and, in turn, have their marriage recognized for purposes of federal statutes.

In contrast with the federal government’s acceptance of the more limiting state definition of marriage before Loving, the relief requested by Massachusetts asks the federal government to broaden its definition of marriage to include relationships that are inconsistent with the longstanding definition of marriage as the union of one man and one woman. In other words, it asks the federal government to recognize as a valid marriage a relationship that is repugnant, as was polygamy and bigamy, to the common law definition of marriage.

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