Can Washington Defend Marriage?

President Obama has decided not to enforce the Defense of Marriage Act (DOMA). That act “bars federal recognition of same-sex marriages and says states cannot be forced to recognize such marriages from other states.” But Attorney General Eric Holder claims the law is unconstitutional so the President will no longer impose it. But is that really the issue? Is DOMA unconstitutional? And, not that the constitutionality of a law is unimportant, isn’t the President’s obligation to execute law even more important? These two points frame what follows.
Is DOMA unconstitutional? Mr. Holder has in this case ‘pled the fifth.’ You remember the rule about self-incrimination, pleading the fifth? How does that relate to marriage? Read the amendment.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Marriage by Holder’s judgment is wrapped up in the phrase ‘due process of law.’ What’s that got to do with marriage? Notice the prior list of 5 actions that cannot be taken without due process of law. Nothing about marriage; all about arrest and trial. Yet Holder says the phrase applies to DOMA. Let me try to explain why.
The reasoning actually begins with the 14th Amendment. That contains what is called equal protection of the laws. It forbids states from denying to any person within its jurisdiction the equal protection of the laws. That means that everyone will be treated equally in regard to the enforcement of any given law. This was written to insure that blacks would not be discriminated against after the Civil War. Of course equal protection of law has a universal application; everyone, not just blacks, is guaranteed the same security. But the 14th amendment cannot be used to prove DOMA unconstitutional. Its universe is limited to the states individually. It does not apply to Federal laws. Enter Earl Warren.
In 1954 the Supreme Court argued that if the states could not deny equal protection of the laws than it would be absurd for Congress to have that right. "[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive,” Chief Justice Warren. In other words, due process of law and equal protection of the laws are now essentially on the same plane. Back to Mr. Holder.
The Attorney General knows that the 14th Amendment has application to the states only (I give him credit for that) so he won’t use the clearest statement of equal protection. Since it is the 5th Amendment that applies to Congress he falls back on Warren’s interpretation- DOMA does not provide equal protection of the laws because it discriminates against gays.
It is a long stretch to find equal protection in due process even if a Supreme Court justice is the stretcher. Holder’s interpretation does not make DOMA unconstitutional. Yet I would argue that DOMA is unconstitutional on other grounds. Simply put, the Constitution of these United States has no jurisdiction over marriage. Marriage is not in the realm of the government that the Constitution creates. Some may cite the 10th amendment as a basis for individual states to rule on marriage. But there is no basis for these kinds of laws. Marriage is God’s design.
God has once and for all defined marriage. “Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.” (Genesis 2:24) Marriage is only marriage when it is between man and woman. No governmental permissions or interdictions will ever change this God-ordained union.
But there is another question to be answered. More important than the first. The President says he will not enforce DOMA. Is he allowed to do that? Absolutely not! The President “shall take care that the Laws be faithfully executed.” It doesn’t matter whether he agrees with them or not. Whether he wants to or not. How many of his henchmen are affected. If he believes a law is unconstitutional he must wait for a Supreme Court ruling. He may not decide to simply abandon one.
Regardless of the constitutionality of DOMA President Obama is duty bound to execute it, like it or not. He violates his oath and breaks his promise to Americans whenever he decides willy-nilly which laws he will enforce.