It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [61]
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This case was brought by the State of Massachusetts because in 2004, the State decided to recognize same-sex marriages. In fact, as of February 12th 2010, Massachusetts issued marriage licenses to at least 15,214 same-sex couples.25 Unfortunately, because of DOMA, these couples’ marriages are not recognized in all states, and individuals are unable to receive the unconstitutional, but federally provided, benefits granted to heterosexual couples. Despite the government’s attempt to regulate local matters and interfere with your personal decision to marry whom you choose, Judge Tauro correctly decided the case. He first acknowledged that “family law, including ‘declarations of status, e.g. marriage, annulment, divorce, custody and paternity,’ is often held out as the archetypal area of local concern.”26 Judge Tauro then concluded that by enacting DOMA, the federal government “encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment.”27
While these decisions are a great step forward for marriage equality and respect for the natural right of privacy in choosing a life partner, Judge Tauro errs in relying on the historical approach of recognizing state marital status determinations. The history of our nation does include state determinations of who may marry whom; however, just because a power is entrenched in history does not make it correct. Neither the federal government nor the state governments should interfere with private decisions to marry because those decisions are unique to individuals—they are made, figuratively and literally, in the heart of privacy. They are the essence of personal behavior immune from government—state or federal—intrusion or regulation. Without any interference from the federal or state government, you choose what college to attend, what career to pursue, where you want to reside; likewise, you should be free to choose whom you want to marry.
Another step forward has come with a recent federal district court’s ruling that Proposition 8 in California is unconstitutional. California’s Proposition 8, passed by voters in 2008, mandates that marriage can only be between a man and a woman. Judge Vaughn Walker struck it down on the basis that it violated the right to marry, or stated otherwise, that the right to choose a marital partner does not require the permission of your neighbors or the voters or the government. He enforced the right to be left alone.
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Judge Walker stated that
the right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household . . . same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.
Thus, there can be no legitimate reason for differential treatment. And as to the claim that such marriages were not procreative in function, Judge Walker noted that the state has never inquired into mixed-sex couples’ capacity to reproduce in deciding whether to grant a marriage license. Such a world would be no less despotic or terrifying than the Third Reich, with its policies of eugenics and forced sterilization! This judicial giant reminds us that if it were not for an independent judiciary, which is committed to the Constitution, nothing would prevent a runaway majority from taking the liberty or the property of the minority. Government