President Obama's Justice Department colluded with gay marriage advocates to make sure the 1996 Defense of Marriage Act was overturned by the courts.
That's not just my view -- it's pretty close to the searing conclusion drawn by professor Richard Epstein in a piece for Forbes:
"This controversial case might well go up on appeal. But if so, it looks almost like collusive litigation, unless some true defender of DOMA is allowed, as an intervener, to defend the statute on the merits."
Epstein is referring to recent twin rulings by U.S. District Court Judge Joseph Tauro -- in Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services -- that strike down key portions of DOMA.
"As a supporter of gay marriage, I still think that the DOJ's faint-hearted advocacy is no way to run a legal system," Epstein continures." Nor is it wise for courts to use the equal protection clause as a club against conventional morality, deeply felt."
Epstein concludes: "We don't need a judicial precedent that will spark a nationwide rerun of California's Proposition 8. We need courts to back off to democratic processes, imperfect as they are."
Richard Epstein, a brilliant libertarian constitutional law scholar, opposes DOMA as policy, not only because it prevents the federal recognition of gay marriages but because it excludes polygamous marriages, as well.
But he is nonetheless standing up for core principles. Just because you favor gay marriage doesn't make it a constitutional right.
Take that, Ted Olsen!
Jonathan Rauch, who makes the best conservative case for gay marriage possible, is a gay man, the author of "Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America," and another man of great principle. In The New York Times he called on Supreme Court nominee Elena Kagan and the other Supreme Court justices to uphold Proposition 8. "The argument for upholding California's gay marriage ban has merit -- not because the policy is fair or wise (it isn't), but because it represents a reasonable judgment that the people of California are entitled to make."
He goes on to say: "Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country's search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job."
Slowly new voices are emerging in defense of our constitutional system of government.
In the Daily Caller, my colleague Brian Brown (president of the National Organization for Marriage) points to the same underhanded collusion to which Richard Epstein alludes.
"But if there is any excuse for Judge Tauro's ruling, it lies in this fact: No one in that courtroom in front of him tried to defend the law. President Obama's Justice Department (with Elena Kagan's participation as solicitor general) pretended to defend DOMA, while actually sabotaging the law and ensuring its overthrow by the courts."
How did President Obama's Justice Department, with Elena Kagan as solicitor general, sabotage DOMA? As Brian Brown says, "Let me count the ways."
First there is the strange hole in Judge Tauro's opinion. In the 19th century, the federal government intervened repeatedly to ban polygamy, and the Supreme Court upheld the federal government's right to do so. The reason Judge Tauro doesn't deal with these precedents is that President Obama's brief never mentions them.
But, as Brian Brown points out, "It gets worse than that."
Congress, when it passed DOMA, laid out in very clear terms that "responsible procreation" is a key reason for DOMA's existence. As Judge Tauro's ruling notes: "The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources."
But in its briefs, allegedly defending DOMA, Obama's Justice Department explicitly repudiated "responsible procreation" as a reason for DOMA. "How can Justice's lawyers strip a law of its clearly stated purpose?" Brown asks. "Well, the DOJ brief claims 'expert consensus' now exists that children don't need moms and dads."
There you have it. As Brown writes, "Rule by out-of-touch, anonymous experts, backed by activist judges. Brought to you by President Obama."
Politics makes strange bedfellows. But principle, done right, can make even stranger ones.
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