Yesterday, the U. S. Department of Justice announced it will no longer defend the Defense of Marriage Act, because it is not (in the opinion of the Obama Administration) Constitutional.

• Viewer Warning: No one will agree with the opinions I express here. No one. Not my closest associates, not my family and relations. And certainly not my husband.

What’s so sacred about marriage?

I don’t think any sane person should want to get married, because marriage isn’t a legal contract or a human right—it’s a religious rite and cultural custom. If I were gay I would prefer to make a contract with my partner, a contract that truly protects my human rights and my equality in the relationship. Marriage laws in America uphold a strictly patriarchal social relationship. Birth fathers have more rights than birth mothers. Husbands are named “the head of the household.” Men on average make more money than women. In other words, marriage is not an equal partnership.

Furthermore, it’s a myth that gay couples have fewer rights than heterosexual couples. One of the most common abuses of gay human rights cited is the right of a partner to attend the bedside of a gravely ill hospital patient: this is a myth. Anybody can attend the bedside of a gravely ill hospital patient, including complete strangers. I have seen this with my own eyes.

What else are gays deprived of? I can’t think of anything other than “don’t ask, don’t tell,” and that has nothing to do with marriage. Gays can adopt children. Gays can bear children. Gays can jointly own property. Gays can will their property to anybody they want.

What don’t gays have the right to—other than a “right” to call each other “husband” and “wife”? Divorce.

The only thing gays would “gain” through marriage is the need to go to court to dissolve their marriage. Then a judge would decide who gets what property and who gets custody of the kids. Is this what you want?

Marriage is essentially a religious concept. It is to religious leaders that gays should apply for marriage rites, not the government.

Goodbye, Supremes!

Oddly enough, by means of the Defense of Marriage Act the Congress granted the courts the right to make all the decisions in the dissolution of marriage. Now, to void the Defense of Marriage Act, the President has taken the issue out of the hands of the courts.

So when did the President gain the right to declare legislation Constitutional? I thought that was the role of the Supreme Court.

• Sidebar: Yes, I know that President Lincoln issued the Emancipation Proclamation without regard to the “separation of powers.” But that was an act of war against some of the States, an outright voiding of the Constitution. Lincoln’s proclamation (NB, not a voiding of a law) did not become law as a result of his Attorney General deciding not to defend the law; it did not become law as an automatic result of the Civil War; it became law only when the Congress and the People amended the Constitution.

It seems to me that President Obama is waging war against the Supreme Court. This statement declaring a law unconstitutional is his version of a proclamation attacking the independent judiciary.

But they must have seen it coming. First there was the unprecedented appointment of the U. S. Solicitor General to the Court (that is, the chief lawyer-advocate for the Administration against the People and the States in front of the Court). Then there was the verbal attack during his State of the Union Address. Then there have been several delaying tactics to prevent disputes with the States from reaching the Court (the AZ illegal-alien situation and the dispute with Texas over EPA regulations that co-opt State regs). The Administration is delaying the issue of Obama Care in the lower levels of the federal courts, rather than facilitating a Supreme Court decision.And now the Administration has declared it won’t pursue cases in the federal courts concerning the Defense of Marriage Act.

• Sidebar: I wonder if the fact that Justice Kagan as Solicitor General for the Obama Administration told the Supreme Court that there is no Constitutional right to same-sex marriage has anything to do with the Administration’s reluctance to let a case reach the Supreme Court?

Vanishing Justices

It’s conceivable that within a few years, no cases will make it to the Supreme Court other than those which the then-sitting President feels will be decided in his favor.

But it’s nothing new: this will only continue the decades-long diminishment of the role of the courts. As things stand now, civil litigation involving businesses is skewed in favor of the plaintiffs by the practice of shopping for favorable judges. Criminal trials are dominated by legislative restrictions on judicial discretion and by politicized prosecutions. Juries no longer play the role for which they were invented millennia ago: even judges try to dictate to the jury, and if a jury hangs it’s likely to be subject to penalties for “jury misconduct.”

This isn’t a good trend.