The Defense of Marriage Act is constitutionally offensive

  • Article by: George Will , Washington Post
  • Updated: March 20, 2013 - 7:54 PM

Both conservatives and liberals should want the court to strike it down, although perhaps not for the reasons they favor.

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pumiceMar. 20, 13 9:49 PM

From the article: "By striking down DOMA — by refusing to defer to Congress’ usurpation of states’ powers — the court would defer to 50 state governments, including the 38 that today prohibit same-sex marriage. Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities." Is there any "continental uniformity" which George Will would defend? Or are all the hard won civil and human rights and all the federal social insurance programs simply "usurpation of states' powers" according to his understanding of the US Constitution?

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ontherecordMar. 21, 13 6:33 AM

Will relies on a 1948 SC decision in an effort to skirt the Equal Protection Clause. The 14th Amendment guarantees all citizens equal protection under the laws. That applies to the States as well. Therefore, any law that discriminates against a citizen's right to marry another unrelated adult person is just plain unconstitutional. States may have rights, but they do not have the power to require certain citizens to sit in the back of the bus, either literally or figuratively.

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okaybruceMar. 21, 1311:56 AM

I think men should protest because they can't become pregnant and give birth. Clearly, it is a form of unjust discrimination to say a man can't give birth. Why should a womb matter?

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davehougMar. 21, 1312:43 PM

I am certain everyone who wrote a state or federal constitution with an 'equal protection' clause did NOT say "by the way, this means gender doesn't count in marriage". My humble opionion is gay marriage is a CHANGE and so should be changed via amendment process. Otherwise what is the process for if changes can be accomplished by a single judge re-defining terms. The other point of DOMA taking power from states is valid. - - - davehoug@comcast.net

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hawkeye56379Mar. 21, 13 1:16 PM

"I am certain everyone who wrote a state or federal constitution with an 'equal protection' clause did NOT say "by the way, this means gender doesn't count in marriage". My humble opionion is gay marriage is a CHANGE and so should be changed via amendment process"---------- They didn't say race doesn't count in marriage either, but equal protection of the law required that laws against interracial marriage were declared unconstitutional by the Supreme Court. That was a CHANGE too. If the courts don't uphold our constitutional rights, such as equal protection, we'll be in trouble.

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jgmanciniMar. 21, 13 1:21 PM

"I think men should protest because they can't become pregnant and give birth. Clearly, it is a form of unjust discrimination to say a man can't give birth. Why should a womb matter?"-------Actually, it's perfectly legal to for men to become pregnant. There's no law prohibiting it. Which just shows the ridiculousness of your unrelenting argument that gay marriage is "impossible". If something is truly impossible, you don't need to regulate it by law. So, go right ahead, Bruce, and get pregnant. Because there's nothing stopping you legally, and it makes as much sense as anything else you've ever posted.

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solarnowMar. 21, 13 2:19 PM

The Equal Protection Clause (14th Amendment) is a much more compelling and relevant argument than a State's rights versus Federal usurpation of powers argument. DOMA should be overturned on Equal Protection grounds. Period. And let the States' discriminatory laws fall like dominoes.

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davehougMar. 21, 13 9:46 PM

So why was the Equal Rights AMENDMENT put forth if all it really took was a single judge applying the 'equal protection under the law' clause???? There is a reason the amendment process exists.....to change constitutions.

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TheDarkOneMar. 22, 1310:21 AM

Equal protection? Heterosexuals and homosexuals are treated equally. Under current laws, both are legally permitted to marry members of the opposite sex, and barred from marrying members of the same sex. Comparing the situation to miscegenation laws is comparing apples and oranges.

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hawkeye56379Mar. 22, 1310:39 AM

TheDarkOne: That's just what supporters of laws prohibiting interracial marriage used to say, too: everyone was being treated equally because everyone was legally permitted to marry members of their own race and banned from marriage to members of other races. The Supreme Court had no trouble seeing through that argument. The only difference is now it is the government dictating the gender of the person that someone can marry rather than their race. Apples to apples.

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