The Obama administration’s decision not to defend a key federal marriage law raises worrying questions about the religious freedom of Catholics and others who believe in traditional marriage, according to Catholic leaders.
U.S. Attorney General Eric Holder announced Feb. 23 that the administration now believes the 1996 Defense of Marriage Act – which defines marriage as the union of one man and one woman and denies marital benefits to homosexual partnerships – is unconstitutional because it discriminates against homosexuals.
Holder cited a “changed” legal landscape – including a Supreme Court ruling that laws against homosexual conduct are unconstitutional. He also cited Congress’ decision late last year to repeal the “Don’t Ask, Don’t Tell” policy that prevented homosexuals from serving openly in the military.
Anthony R. Picarello, Jr., the top legal counsel for the U.S. bishops, called the administration’s decision a “grave affront” to Americans who reject unjust discrimination but also affirm “the unique and inestimable value of marriage as between one man and one woman.”
“Support for actual marriage is not bigotry, but instead an eminently reasonable, common judgment affirming the foundational institution of civil society,” Picarello said.
Any government suggestion that this belief is discriminatory is a “serious threat” to religious liberty, he added.
Robert P. George, perhaps the nation’s top Catholic scholar on marriage, described Holder’s defense of the administration’s position as “extremely worrying.”
He said Holder’s statement was “dripping with animus” against people who believe that marriage is “the conjugal union of a husband and wife.”
“He treats that belief as if it were a mere prejudice, as though it is motivated by a desire to cause harm to people,” George told CNA Feb. 24. “Of course, nothing could be further from the truth. It is a legitimate moral belief that has informed our law throughout history.”
The statement suggests to George the possibility that the Justice Department will “abuse its authority to suppress the religious liberty of people who dissent.”
“It raises the concern that the Justice Department will treat believing Christians, Jews, Muslims and others as though they are the equivalent of racists,” he warned.
While racists are not jailed in the United States, they face civil disabilities in licensing and accreditation for fields like teaching and psychology. Universities with racist policies, for instance, are refused tax-exempt status.
George believes it is “imperative” for religious believers and those who support the traditional definition of marriage to defend their religious liberty. Believers should make clear to the Justice Department that they intend to fight any effort to restrict their liberty and their rights of conscience.
He said recognizing marriage as only between one man and one woman is “absolutely not” discriminatory in terms of constitutional law. He cited Justice Anthony Kennedy’s ruling in Lawrence v. Texas, a landmark 2003 case that declared laws against homosexual acts to be unconstitutional. That ruling, George said, has “no implications whatsoever for marriage.”
George is a Princeton University professor of jurisprudence and co-author of the “Manhattan Declaration,” a 2009 statement in defense of the sanctity of life and the family that has garnered nearly 500,000 signatures.
He said even prior to the administration’s latest decision, the Justice Department has mounted only half-hearted efforts to defend the marriage law in court.
“In the litigation so far, the Obama administration and Attorney General Eric Holder have defended the law so inadequately as to make it nearly impossible to conclude that they were not throwing the case,” George said Feb. 24, one day after the administration announced that it would no longer defend the law.
Holder and the Justice Department have declined to advance the “very best arguments” in support of the law. Instead, he said, the administration seemed intent on “deliberately sabotaging the case.”
The law says that the federal government only recognizes unions of one man and one woman as “marriages,” and will not provide benefits to same-sex couples in civil partnerships. It also established that U.S. states are not obliged to recognize same-sex “marriages” contracted in other states that recognize those unions.
But even if the administration will no longer defend the law, George said that Congress can.
“Members of the House of Representatives have standing to retain their own counsel and to defend the act, which, after all, went through the Congress with large bipartisan majorities,” George said. “I’m confident that the lawyers defending the act for the members of the House will defend it robustly and will make the very best possible arguments. In the end, I think, they will succeed in demonstrating that the act is perfectly constitutionally valid.”
George also raised the question of whether President Barack Obama had “defaulted” on his obligation faithfully to see that that the laws of the nation are executed, as his presidential oath requires.
However, George believes public sentiment for traditional marriage remains strong. He noted that all 31 state initiatives to reaffirm the definition of marriage have passed in recent years
For George, these defeats for advocates of same-sex “marriage” explain why they are trying to prevent the issue from being decided in an election.
“If they really thought that the people were going their way… they would be out there ahead of us trying to get the issue on the ballot.”
While some proponents of same-sex “marriage” have depicted their victory as inevitable, George noted the same had been said of movements like communism and legal abortion. However, in the case of abortion most people now profess themselves to be pro-life, especially young people.
“The people on the pro-same-sex marriage side can crow all they want and bluster about how history is on their side, but I’ve heard that same song before,” he said.