Is DOMA Constitutional?
June 2, 2011
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A little while back, after a presentation, I was asked if the Defense of Marriage Act was constitutional. I didn’t answer very well because of the time constraints of the meeting, so I want to answer more thoroughly here. The answer is yes and no. The US Congress has been delegated by the Union States the authority “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…” ( Article 1, Section 8, pp18, US Constitution ) OK, now we need to examine just how those powers are divided. Paragraphs 1 through 16 are powers granted for the “common defense and general welfare” of the Union States. That these paragraphs are in reference to the several states can be deduced from the language in paragraph 1 which demands that “all Duties, Imposts and Excises shall be uniform throughout the United States;” This language prevents one state from being taxed differently than its neighbor. The remaining 15 paragraphs contain the rest of the powers delegated to Congress – it’s a very short list, and the tenth amendment notices that any powers not listed there “are reserved to the States respectively, or to the people.” So in this regard, the DOMA is an unconstitutional reach into the affairs of the States and the people. The internal laws of a Union State regarding marriage are nowhere referenced in the delegated powers of Congress.
Now that this acknowlegement has been made, please look at section 17, which grants to Congress authority “To exercise exclusive Legislation in all cases whatsoever over…” what amounts to Washington, DC and the territories and properties which are owned by the US government. In this light, the DOMA most certainly IS constitutional, if applied only in the specifically identified areas where the Constitution has granted Congress that kind of “exclusive” legislative authority. But remember, the Union States do NOT fall within the exclusive legislative jurisdiction of Congress.
Our American system of law and government used to be guided by Natural Law … what our founders referred to as the Laws of nature and Nature’s God … but today has been summarily evicted from the bar and bench. This has been accomplished by a number of methods, but most harmful has been the efforts by the judicial to keep juries ignorant of their duty and right to nullify state and local laws which do not comport with our American sense of right and wrong and justice, and secondly by the State check on federal power having been stripped away by taking away from our state legislatures the appointment of US Senators, who could until that time, have been counted on to fight for the rights of their local communities to determine their own local ordinances and laws based on their local interests and values; to stand with their states’ legislatures to nullify federal laws which were obnoxious to our American system of sovereign states in republic with each other. ( Otherwise the state legislature could simply impeach and remove them if they were unwilling to protect the sovereignty of the State.)
So this legislation, like any other, must be viewed from a perspective of American law and government; does it apply to the entire Union, or only to the areas where Congress has power to exercise “exclusive Legislation in all cases whatsoever”? I think the answer is obvious, but the lesson here is really what the unintended consequences become when we allow men with no regard for the oath they take to defend our Constitution, to wield the power of the federal government without regard for the Natural Law it is grounded on. I mean, really, is there any reason to suspect that this legislation would have even been proposed if we were a virtuous people, and either voted out or removed from office those who were willing to lie down while our traditional Natural/Common Law is trampled on?