Readers of this site know that I’m a Ron Paul fan. Even though I fundamentally disagree with him on fiscal policy, I appreciate the way he sticks up for the Bill of Rights, speaks out against American interventionism abroad, and votes his conscience. We need more honest people like him in politics.
That being said, the Texas Congressman has it totally wrong on the Obama administration’s decision to stop defending the ridiculously named Defense of Marriage Act in federal courts. In announcing the decision Wednesday, Attorney General Eric Holder said that DOMA “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the [Fourteenth Amendment’s] Equal Protection Clause is designed to guard against.”
Paul penned a response critical of the administration’s position, saying in part,
The Defense of Marriage Act was enacted in 1996 to stop Big Government in
I supported the Defense of Marriage Act, which used Congress’ constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause, to ensure that no state would be forced to recognize a same sex marriage license issued in another state. I have also cosponsored the Marriage Protection Act, which would remove challenges to the Defense of Marriage Act from the jurisdiction of the federal courts.
First off, what Paul is essentially saying is, “Big Government in
Apparently, Paul views DOMA as a preemptive strike against a future Congress that is run by gay-loving states’ rights haters who will define marriage as a union between any two persons. I don’t think he has much reason to worry about that happening in his lifetime.
Until today I did not know Paul’s position on DOMA, though I assumed he was against it because the legislation does two things that seem to be anathema to his principles. For one thing, DOMA defines marriage as “a legal union between one man and one woman as husband and wife.” Paul is personally opposed to same-sex marriage, but I had always figured that the idea of the federal government (Congress) defining marriage would thoroughly repulse him. Nowhere in the Constitution is Congress given the power—either expressly or implicitly—to define marriage, thus reserving it to the jurisdiction of the states.
But DOMA does something else, and this is the key to understanding Paul’s misguided position on the legislation. DOMA also declares:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
To say this provision is constitutionally on shaky ground is an understatement. Consider the Constitution’s Full Faith and Credit Clause which Paul mentioned above:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The purpose of this clause is clear. A legal contract entered into and legitimized in one state must be recognized as such in another. If you and your significant other get married in Massachusetts and move to Ohio, you don’t have to get married again, in Ohio, in order to get a another marriage license. The state of
But can Congress simply deem certain state laws exempt from the FFCC? The Clause says that Congress “may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” I’m not sure there is anything here that gives Congress the power to tell the states that they may ignore one another’s laws altogether, thereby rendering the actual full faith and credit part of the Full Faith and Credit Clause a mere suggestion.
Paul asserts that Congress has “constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause.” But if this is the case, then why doesn’t the FFCC just say so? The word “except” occurs eleven times in the original Constitution. The Framers were not afraid to utilize this word for the sake of specificity. Indeed, one can easily imagine a wording of the FFCC that leaves no doubt as to its intent. If Paul’s reading is correct, why doesn’t the Clause say something like,
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State [except those Acts, Records, and judicial Proceedings expressly exempted by the Congress]. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Without additional wording of this kind, however, the FFCC is vague, and in such a manner that I don’t think can be construed as to allow Congress the authority to exempt certain acts which some states, or Congress itself, may find objectionable. The Clause only says that Congress may, but is not necessarily obligated to, prescribe how such acts and records are proved and what effects they have, not what if any acts and records are exempt from this provision altogether.
There are also Equal Protection implications of DOMA, as mentioned by Holder, but that is a whole other issue. Sufficeth to say conservatives hate the Equal Protection Clause, or at least the way in which it has been interpreted by federal judges for the last century, because states can no longer discriminate as freely as they once did against certain demographics. Perish the thought that federal government act as a guarantor of life, liberty, and property against the occasional anti-liberty machinations of the states.
Of course, all of this Constitution-parsing and legal wrangling—important though it is—takes away from one very fundamental fact: there is no good reason for opposing same-sex marriage. To be opposed to this is to be bigot. Ron Paul and millions of other Americans ought to be ashamed of themselves for their position on this issue.
- Max
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