A must-read analysis of the recent federal district court decision attacking DOMA, written by Hadley Arkes, one of DOMA's architects.

Judge Tauro Does DOMA
July 09, 2010 8:33 AM
By Hadley Arkes

Judge Joseph Tauro, in the federal district court in Boston, took it upon himself to strike down the 1996 Defense of Marriage Act (DOMA). With that stroke he would remove one of the key barriers standing in the way of imposing same-sex marriage on the nation as a whole. And it would be done through the power of judges alone, without the need to agitate the community in any political controversy, and without citizens or legislators needing to do such unseemly things as voting.

Judge Tauro accomplishes this task by essentially presupposing the most decisive points that he should have been obliged to establish in an argument. A good third of the judge’s opinion was spent in showing all of the benefits that would be denied to spouses of same-sex couples in the federal government. They would be denied those benefits simply because Congress, which has the sole authority to legislate the federal code, stipulated that every reference to marriage in that code would be a reference to a legal union of a man and a woman. And yes, the consequence of that stipulation in the meaning of marriage does mean that no companion of the same sex can have the standing of a spouse to receive benefits in the form of retirement, pension, medical care, to the extent those benefits are conferred on spouses and members of the legal “family.”

But to compile the litany of benefits foregone is not to make the case that they have been withheld wrongly, without justification. An argument must be supplied. Judge Tauro wanted to argue that the withholding of benefits was illegitimate because the distinction between a marriage composed of a man and a woman, and a marriage composed of people of the same sex, is an illegitimate, unjustified distinction. For Judge Tauro that distinction treats differently people who are in the same situation ­ i.e., people who claim to be married, as indeed they may claim right now under the laws of Massachusetts.

Up until the early 1990s, when judges started acting as engines to install same-sex marriage, it did not seem to occur to most people that marriage meant anything other than the marriage of men and women. Judge Tauro’s affectation is to have us believe that it is quite as natural and legitimate now to assume that any couple of the same sex would be as plausible a candidate for marriage as the coupling, more familiar, of a man and a woman. One would hardly know, from Tauro’s opinion, that there are compelling arguments, grounded in nature and moral reasoning, that call into serious question the coherence of any arrangement that would call itself “marriage” while detaching itself from the union of a man and a woman. Tauro might have serious arguments to make against that case, but that argument has to be made. This late in the seasons of our experience, the overthrow of the traditional understanding of marriage is an act still sufficiently momentous that it deserves to have the reasons assembled to justify itself. Tauro simply begins by presupposing the legitimacy of same-sex marriage and the “irrational prejudice” of anyone who would deny it. As Bertrand Russell once said, presupposing has every advantage over demonstration that theft has over honest labor.

But from that sleight of hand, Tauro fell into arguments that virtually turned on themselves and self-destructed. Since he could see no legitimate ground for denying same-sex marriage, he could recognize no legitimate purpose in a statute that was meant to shore up marriage, or to prop up the states in preserving marriage against the move of judges, state and federal, to strike down the traditional laws of marriage. Hence Tauro could twist into falsity the facts that were before him: He could simply declare that Congress enacted the Defense of Marriage Act “for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves.” But that has things quite backward: Congress did not act for the purpose of inflicting disadvantages on anyone. It acted for the purpose of firming up the defense of marriage in the law, and that defense simply had the ancillary effect of withholding, from same-sex couples, the benefits that flowed to couples truly married. . . .

Read the whole thing here.