Friday, August 16, 2013

Legislating Morality Part I

This is Political Sphere. Mrs.Spherical Model is out of town and has asked that I guest post for her. I have been working on this series in my spare time, as was mentioned in a recent post. I have split up the series into three parts. Today exposes a fatal flaw in United States v. Windsor. Part II will discuss the history of decisions which led to Windsor. And Part III will discuss flaws with Windsor's precursor, Lawrence v. Texas.

United States v. Windsor and the Congressional Power to Define Terms

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretations 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 wife.” 1 U.S.C. § 7.

The case of United States v. Windsor was an interesting attack on the right of Congress to define terms and to legislate morality. I have often heard the argument that a person should not legislate morals on others. But “morality” is simply a doctrine or system of moral conduct, and “moral” is defined as of or relating to principles of right and wrong in behavior. So, if a system of laws punishes or encourages different types of behavior, then that system of laws is legislated morality, whether it is legislating thou shalt not murder or requiring that all fast food restaurants post calorie counts on their menus. Because the United States is a representative democracy, that set of legislated morality, then, is meant to represent society’s moral ideals as codified by our elected representatives. Therefore, it is beyond argument that a society must legislate morality, or it falls into anarchy.

This brings us to the erroneous logic in Windsor. According to the opinion in Windsor, the history leading to the passage of DOMA was that, while no state in the union accepted such a definition at the time DOMA was passed, Hawaii was considering allowing people of the same gender to be married under state law. To protect states that did not accept this definition as morally acceptable, the Republican Congress passed DOMA which was then signed by Democratic President Clinton. DOMA allowed for states to determine the definition of marriage within their borders, and allowing the state to limit acceptance of marriages performed in other jurisdictions to those between one male and one female, the commonly accepted definition for “hundreds,” if not thousands, of years. Further, because it was the universally recognized definition, instead of addressing the definition in every act ever passed by the United States Congress separately, DOMA included a blanket definition limiting the definition of “married couple” to that of the traditionally, universally accepted definition, and defining spouse as a member of a married couple of the opposite sex.

The majority in Windsor recognizes the United States Congress has the power to define terms as used in statutes, citing that the court had accepted this in regards to marriage just this term in Hillman v. Maretta. Indeed, it is well-established that a statutory definition supersedes the common meaning of the term when applied to the law. For example, if Congress passed a statute defining “fish” as a young goat, then, for the purposes of the law, any time the term “fish” came up it would in fact be referring to a young goat and not apply to a creature with gills that swims in the water, as the dictionary defines the term. How then did the court determine that it was unconstitutional for the Congress to do something that settled law allows Congress to do?

The answer to that question comes from the majority’s reliance on previous erroneous opinions, specifically Lawrence v. Texas, as well as an incorrect statement that while “Marriage laws vary in some respects from State to State... these rules are in every event consistent within each State.” I say this is an incorrect statement, because the statement directly contradicts what the majority opinion previously noted. In addition to the citation of Hillman v. Maretta, the court observes that other statutes (8 U.S.C. § 1186a(b)(1) and 42 U.S.C. § 1382c(d)(2)) define marriages and spouses regardless of the State’s view on the marriage for the purpose of federal laws.

While this contradiction undercuts any validity of the majority opinion, more dangerous reasoning comes from the statement “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558.” Of course Lawrence v. Texas is the landmark case which ruled that anti-sodomy laws were unconstitutional, overturning Bowers v. Hardwick. Because this blog is already way over a decent word count for a blog, I will leave the discussion of Lawrence for later.

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