24 Feb 2011 Statement of National Center for Public Policy Research President Amy Ridenour on Obama Administration Assertion that the Defense of Marriage Act Violates the Constitution’s Equal Protection Clause

Washington, D.C. – The following is a statement by National Center for Public Policy Research President Amy Ridenour on the Obama Administration’s assertion that the Defense of Marriage Act (DOMA) violates the Constitution’s Equal Protection Clause:

President Obama and General Holder incorrectly assert¹ that the Defense of Marriage Act (DOMA) is unconstitutional under the Equal Protection Clause.

To whatever extent their conclusions are based on policy and not politics, Obama and Holder are relying on an unprovable and unsound assumption, that is, that there is a class of people who are inherently separate and distinct from others based exclusively on their announcement of a preference for sexual relations with a person of their own gender.

Obama and Holder apparently believe the Constitution requires the law to adjust itself to accommodate citizens who determine for themselves that they constitute a distinct class under the law. What’s more, they apparently believe the Congress plays no role in said adjustment.

If Obama and Holder’s position were to become the standard, any group anywhere could announce themselves to be a distinct class under the law, simply by asserting a preference contrary to the established norm in a matter regulated, subsidized, or affected by government policies. That is, after all, essentially all the homosexual advocacy organizations have done.

It would be a bad precedent to use personality characteristics as a basis for constitutional interpretation.

Every American of legal age, excluding some deemed mentally incompetent to fulfill a contract, is treated identically by our marriage laws. We can only marry if we are unmarried, and if the person we wish to marry is eligible to marry. We can only marry a person if that person wants to marry us back. We can’t marry a close relative. And for purposes of federal law as determined by Congress and signed into law by President Clinton, we must marry someone of the opposite sex.²

Equal rules. Equal protection.

The National Center For Public Policy Research is a conservative, free-market non-profit think-tank established in 1982. It is supported by the voluntary gifts of over 100,000 individual recent supporters, and receives less than one percent of its revenue from corporate sources.

Footnotes:

¹ Attorney General Eric Holder’s letter to Speaker of the House John Boehner (http://www.justice.gov/opa/pr/2011/February/11-ag-223.html) begins:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.

Section 3 of DOMA says:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

² Certain additional restrictions apply to incarcerated felons.

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