George Will is among the conservative pundits who've come out against the Defense of Marriage Act, citing the legislation is an overreach of congressional powers, and is an issue best left to the states to decide.
Will asserts in his column, "DOMA is an abuse of federalism" that "conservatives who supported DOMA should, after 17 years' reflection, want the act overturned because its purpose is constitutionally improper."
In the case United States v. Windsor, the Supreme Court is being asked to rule that constitutional equal protection requires the government to open marriage to same-sex couples.
There are two parts to DOMA. The first says that states that do not allow same-sex couples to wed are not obligated to recognize same-sex marriages from other states. The second defines marriage as the union of one man and one woman for the purposes of federal law, but does not impose that requirement on the states. The CP reported Wednesday morning that the Supreme Court is only hearing a challenge to the second part of DOMA.
Peter Reilly, a contributor to Forbes magazine, lauded Will for unabashedly coming out against DOMA and stating the case for those who want to see the legislation defeated by the Supreme Court.
"It seems to me that somebody who really cares about Constitutional principles should be rooting for either Perry or Windsor, but not both of them. If you are fond of federal supremacy then root for Perry. If you are attached to states' rights, then root for Windsor," Reilly said.
Former president Bill Clinton, who signed DOMA into law on Sept. 21, 1996, wrote in a Washington Post column earlier this month that although the bill was "opposed by only 81 of the 535 members of Congress," he now believes DOMA is "incompatible with our Constitution."
Clinton cites a litany of rights he believes are being denied to same-sex couples, because Section 3 of DOMA defines marriage as being "between a man and a woman," thus inhibiting same-sex couples from filing taxes jointly, and receiving "pension benefits as federal civilian employees."
Some conservative activists think Will and others are standing on the wrong side of history in the marriage debate, and they believe that DOMA, which says that regardless of state law same-sex couples will not be recognized as married for purposes of federal law, should be upheld by the court.
"Marriage has been defined between one man and one woman for over a millennium, and it is our view that the courts should not get involved at this point in time and fundamentally change the institution of marriage," said David N. Bossie, president of Citizens United whose National Committee for Family, Faith and Prayer filed a brief in the DOMA case.
"Many conservatives, like myself, are not swayed by the current social pressures to be for gay marriage," said Bossie in a statement to the CP on Wednesday.
In another gay marriage case being heard by the high court, Justice Sonia Sotomayor asked Theodore Olson on Tuesday, during his argument against California's Proposition 8 in Hollingsworth v. Perry, at what point should the government stop redefining marriage, with respect to polygamy, incest, and any other type of marriage options that citizens might believe they are being denied under current laws.
"If you say that marriage is a fundamental right, what state restrictions could ever exist," Sotomayor asked. "Meaning, what's the restriction with respect to the number of people that could get married, the incest laws – mother and child. What's left?"
If DOMA is defeated, the redefinition of marriage to include same-sex couples will have an impact on the family unit, specifically the children of same-sex couples, according to a social science study published last year by Mark Regnerus, an associate professor of sociology at the University of Texas at Austin.
Regnerus' study found that children function best as adolescents and young adults when they are raised by their biological mother and father or are adopted by a mother and father who remain married.
"We cannot predict the future, but we do know that children are best served when raised by a father and a mother, like it has been done for thousands of years," Bossie said.