Calvin Freiburger

On DOMA, It’s the Tea Party’s Turn to Read the Bill

Posted on July 16 2010 10:00 pm
Hailing from Fond du Lac, Wisconsin, Calvin Freiburger is a political science major at Hillsdale College. He also writes for the Hillsdale Forum and his personal website, Calvin Freiburger Online.
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I had a different reaction to that Washington Post article on the Tea Party movement and same-sex marriage than Chris Barnhart did. I fully understand that the Tea Party isn’t really traditionally conservative, but a loose association of voters and activists fed up with excessive taxes and spending—TEA stands for “Taxed Enough Already,” after all—and as such they’re no more obligated to talk about homosexuality than Americans for Tax Reform is obligated to talk about affirmative action, or American Life League about gun control.

But given the movement’s “embrac[ing] the 10th Amendment as a symbol of their opposition to what they believe is the outsized role taken on by the federal government,” my first thought was: have any of these people read the Defense of Marriage Act?

Phillip Dennis, Texas Tea Party Patriots: “I do think it’s a state’s right…if the people in Massachusetts want gay people to get married, then they should allow it, just as people in Utah do not support abortion. They should have the right to vote against that.”

Everett Wilkinson, Florida Tea Party Patriots: “On the issue [of gay marriage] itself, we have no stance, but any time a state’s rights or powers are encouraged over the federal government, it is a good thing.”

That’s all well and good…but that’s what the Defense of Marriage Act says, too:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

DOMA is not a federal ban on same-sex marriages, but a federal guarantee that individual states can make their own decisions about marriage, and won’t be forced to recognize other states’ definitions. Last time I checked, that’s what the Tea Party was all about, right? So why are they talking about DOMA as if it is a federal ban?

Section 3 allegedly violates states rights by federally defining marriage as a man-woman union, but as Ed Whelan points out on National Review Online:

Section 3 of DOMA merely defines what the words “marriage” and “spouse” mean in federal law.  If Congress had the authority to enact the federal statutory provisions that contain the words “marriage” and “spouse”—and Touro never suggests otherwise—then surely it had the authority to define what those words mean in those federal statutory provisions.  The fact that it chose to do so in a single law rather than through separate definitional sections accompanying the more than one thousand provisions of federal statutes that use those words can’t have any bearing on the question of federal power.

DOMA doesn’t “induce[] Massachusetts to violate the equal protection rights of its citizens,” as Touro ludicrously asserts.  (Slip op. at 27.)  All that DOMA means is that if Massachusetts wants to take part in federal funding programs that condition benefits on marriage as federally defined, it must, for purposes of those programs, comply with that condition.  What Massachusetts is really seeking, and what Touro is commanding, is that federal taxpayers subsidize same-sex marriage in Massachusetts.

Granted, some Tea Partiers would probably say there shouldn’t be any statutory provisions about marriage at the federal level, but that’s a separate issue from the right of states to set their own marriage definitions or benefits.

These Tea Party leaders supposedly back Touro’s ruling “because it emphasizes the legal philosophy of states’ rights,” even though it does no such thing, suggesting that it’s disturbingly easy for leftists to hoodwink certain elements within the movement simply by wrapping their actions in the veneer of states’ rights.

From ObamaCare to the Arizona immigration law, one of the Tea Party’s favorite refrains is that our politicians don’t even bother to read the laws they pass judgment on. Now it’s time for the movement to practice what it preaches.


Hailing from Fond du Lac, Wisconsin, Calvin Freiburger is a political science major at Hillsdale College.  He also writes for the Hillsdale Forum and his personal website, Calvin Freiburger Online.

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