The Law, Opinion Polls and Marriage
A federal judge in Boston has ruled that the Defense of Marriage Act (DOMA) passed by Congress (427 members voted in favor) and signed into law by President Clinton in 1996 cannot take precedence over a Massachusetts law allowing same-sex marriage. The ruling again raises serious questions about the origin and purpose of law. But before we get to that larger question, the "logic" of Judge Joseph L. Tauro's ruling should first be examined.
Judge Tauro's decision flies in the face of what the federal government has claimed and is claiming in at least two other significant cases. In 1973, the Supreme Court struck down all state laws restricting a woman's right to have an abortion. In its lawsuit against Arizona's new immigration law, the Department of Justice claims federal law (which the feds are not enforcing) trumps state law.
So let's see: state laws are fine when they promote the interests of the ruling liberal and cultural elites, but they are to be ignored, or overturned, when they do not promote the objectives of the ruling liberal and cultural elites. Is that it? How can the federal government have it both ways?
A New York Times editorial says of DOMA "There is no rational basis for discriminating against same-sex couples." Really? Has the newspaper forgotten the federal government's "discrimination" against Utah when it forbade the territory from entering the Union until it outlawed polygamy? In 1878, the Supreme Court declared in Reynolds v. United States that polygamy was not protected by the Constitution. If the federal government could reject polygamy then as a means of promoting the general welfare, why can't it block attempts to redefine marriage now? If marriage is redefined by courts, what is to stop anyone from declaring a "right" to any relationship they wish to enter and demanding "equal protection" under the Constitution?
Now to the larger question of law, which is also being redefined. During her confirmation hearings, Elena Kagan said she loved the law. …