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Tuesday, April 3, 2012

Cohen's Nonsensical Argument on the Defense of Marriage Act

Andrew Cohen has an op-ed at the Atlantic blasting the Defense of Marriage Act. He writes:
Congress has no constitutional authority to punish people who don't want to have health insurance, Paul Clement argued last week before the United States Supreme Court. This week? The heralded attorney is arguing, to another panel of federal judges, that Congress has plenty of constitutional authority to punish people who don't want to marry someone of the opposite sex. Last week, Clement defended states' rights and labeled as "unprecedented" the federal health care policy. This week, he says that Congress can dictate terms of a federal marriage policy over the objections of states which have legalized same-sex marriage.

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The question in Gill v. Office of Personnel Management is whether same-sex couples, whose marriages are lawful in the states in which they reside, may be precluded by DOMA's Section 3 from participating in programs available to federal employees and their opposite-sex spouses. The lead plaintiff, for example, is Nancy Gill, who works for the United States Post Office and who wants to add her spouse, Marcelle Letourneau, to coverage under the Federal Employees Health Benefits Program.

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If you were explaining the past week's arguments to an alien -- and by alien, I mean someone from Outer Space -- it would be hard to get around the contradictions here. In America today, a federal law designed to reshape the health care market breaches some "fundamental" right to be free from federal oppression. But a federal law that punishes people who want to marry their same-sex partner is worthy of obeisance from the judges. An economic law that does not discriminate is supposed to be given less judicial deference than a moral one which does. I know the standards and precedents are different. But on every level, this is crazy.
Well, its only crazy to those people that don't understand that there is a separation of powers not only within the federal government, but also between the federal government and the states. That means, the states are free to act within their spheres of power, and the federal government is free to act within its sphere of power. Just because one state defines "marriage" for purposes of that state's laws, doesn't mean that the federal government has to use the same definition when interpreting federal law. The provision of DOMA at issue here is perfectly consistent with states rights--a state can define marriage as the union between two mules and a rock if it wants. However, the federal government does not have be bound by that decision. (And neither should other states).

Of course the reason Cohen would advance such a stupid argument is that he cares nothing of states' rights, but is cynically willing to employ a states' rights argument to confuse readers. If he really cared about states' rights, he would be outraged that a federal judge overruled the will of the people of the State of California on this very issue.

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