Christopher Gacek [Senior Fellow, Family Research Council]: "In reaction to the possibility that Hawaiian courts would mandate same-sex marriage for that state in the mid-1990s, Congress enacted the Defense of Marriage Act (DoMA). The vote in the US Senate was 85-14; in the US House of Representatives it was 342-67. President Bill Clinton signed DoMA into law on September 21, 1996. FRC supported the effort to enact DoMA.

DoMA had two objectives: 1) to define "marriage" and "spouse" traditionally in federal law and for federal programs (see 1 U.S.C. §sect; 7); and 2) to affirm the power of each state to make its own decision regarding acceptance or rejection of same-sex marriages with respect to the requirements of the Full Faith and Credit Clause (see 28 U.S.C. § 1738C). For our purposes, we are concerned with DoMA's definition of marriage which reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

This language has not been amended since 1996.

More than seven years after the passage of DoMA, the Massachusetts Supreme Judicial Court overturned that state's long-standing, traditional definition of marriage in Goodridge v. Dept. of Public Health. Same-sex marriages became legal in Massachusetts on May 17, 2004. The plaintiffs in the current federal case are or were same-sex, married Massachusetts citizens who, for various reasons, do not qualify for certain federal benefits because they are or were not married under federal law. See DoMA. As noted in their complaint (p. 90), the plaintiffs seek to "enjoin the defendants [U.S. agencies] from continuing to discriminate against the plaintiffs by treating them differently from similarly situated individuals who are married to persons of the opposite sex."

The real question before us is whether the plaintiffs can find federal jurists who will overturn a perfectly sensible and clearly-written federal marriage statute in the same way this was accomplished in Massachusetts. DoMA defined marriage in the manner it has been known in Western Civilization for thousands of years and which comports with obvious biological realities. It is not remotely irrational or malicious. Congress was acting reasonably when it enacted DoMA thereby providing a uniform marital definition for its numerous statutes and programs. If 1 U.S.C. § 7 is overturned there will be several readily recognizable effects.

First, the moral authority of the Courts in the United States will be further damaged. Maintaining the rule of law and a republican form of government rests on the participants respecting our laws and the Constitution. The sort of social-judicial engineering that would be required to obtain the outcome the plaintiffs seek demands nothing less than the exercise of raw judicial power. If some of our fellow citizens wish to change the federal definition of marriage, they can accomplish this through our elected representatives in Congress. To do otherwise shows little more than contempt for representative self-government and its expression in legislative majority rule.

Second, it is hard to imagine how declaring 1 U.S.C. § 7 unconstitutionally discriminatory would not lead eventually to the second part of DoMA being struck down. Consequently, a victory by the plaintiffs would jeopardize the statutes and constitutional amendments of the forty-plus states that have rejected the recognition of foreign same-sex marriages.

Third, assuming arguendo that state traditional marriage definitions can withstand constitutional scrutiny after a victory by these plaintiffs, a complex and unpredictable interaction between federal and state law may develop especially in mixed federal-state programs (e.g., those state programs that rely on some federal funding and which are subject to federal rules and guidelines). Much would depend on how the federal courts invalidated DoMA. What would the federal layering effect be on state marriage laws and policies? A great deal of lengthy and expensive litigation would be bound to follow as these complex problems are sorted out.

For these and other reasons we should all hope that the federal court in Massachusetts acts with proper restraint and dismisses these claims."