...Thus it takes a certain cool nerve for Judge Tauro to argue that DOMA broke with a tradition of federal restraint from meddling in “states’ areas of sovereign concern,” and to say as well that “DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations,” when DOMA predated the Massachusetts judiciary’s invention of a right to same-sex marriage by seven years.Who was it who set the collision course? Not the bipartisan national coalition that enacted DOMA as a purely defensive measure, and not the sovereign peoples of the states or their elected representatives who are responsible to them for the shape of their constitutional orders, and who have acted to preserve authentic marriage in the law. No, it has been the judicial ideologues who have determined to attack the defensive bulwarks of sovereign power, and to play at being sovereigns themselves...
Matthew J. Franck, Director of the Simon Center on Religion and the Constitution at the Witherspoon Institute. His detailed, well-argued article "Marriage and the Reign of Judges" can (and should be!) read here in Public Discourse, an online publication of the Witherspoon Institute.
