Federal court judge Jeffrey White ruled yesterday that a portion of the Defense of Marriage Act is unconstitutional. It violates the principle to equal protection under the law to offer healthcare benefits to heterosexual couples but deny them to homosexual couples, White wrote in his decision on Golinski v. Office of Personnel Management.
House GOP leaders announced today that they will appeal the decision — to California’s Ninth Circuit Court of Appeals:
The action by the House Bipartisan Legal Advisory Group, which moved on behalf of GOP leaders, will send the case to the U.S. Court of Appeals for the 9th Circuit, which earlier this month ruled against a ban on gay marriage in California. …
When the suit was originally filed, the Department of Justice was set to challenge Golinski in court, but that changed last year when the Obama administration said it would no longer defend DOMA.
House Speaker John Boehner (R-Ohio) then took up the fight by hiring a private law firm to represent the House Bipartisan Legal Adviser Group.
It’s hard not to think the Justice Department’s decision to abandon its defense of the Defense of Marriage Act played a part in how this case shook out, but, at this point, that’s immaterial. What matters next is the appeal — but in California’s Ninth Circuit Court of Appeals? Good luck with that, GOPers.
This is just the latest bit of news to remind me that the more benefits the government confers, the more power it has to determine the conditions for those benefits. If gay activists have made one thing apparent to me, it’s that the legal status of “marriage” is a benefit. But is it really for the government to decide who is or is not married? It’s the government’s role to secure the inalienable rights of men. How do tax breaks for married couples — or any of the many other legal benefits gay couples so assiduously seek — secure basic rights? It’s probably not even the government’s role to incentivize marriage, no matter how good for society the time-honored institution has demonstrated itself to be.
Presumably, the government became involved in the marriage “industry” because marriages traditionally entail the combination of property, and the government does have a role in protecting property rights. But why can’t the government protect property rights without conferring the benefit of “marriage” on any couple? Leave marriage entirely to churches and other voluntary organizations — and do not dictate to churches what the definition of marriage should be. I’d be far less wary of activists for gay legal “marriage” if this administration had proved itself more committed to the protection of religious liberty, that’s for sure. What concerns me is the day the state begins to tell churches they cannot refuse to marry same-sex couples. Whatever will forestall that is the path advocates for traditional (and especially sacramental) marriage should pursue — and that might just be to get the government out of the marriage business entirely.
Update: Newt Gingrich says there’s a “right way” to legalize gay marriage.