I have written my analysis of the Supreme Court’s DOMA decision (U.S. v. Windsor) and my predictions based upon it, as well as Justice Scalia’s dissent which confirms my suspicions. The prediction is gloomy, but I noted there are still ways to stop the Court from striking down the still-existing second section of DOMA.
Before proceeding with the few and simple options we have, let me note that I don’t consider DOMA or anything like it to be the ultimate answer. I simply believe the federal government should have no say whatsoever in marriage. The main reason it considers marriage relates to taxation and wealth redistribution purposes, and these I consider immoral and unnecessary to begin with. The answer here is not to define or redefine marriage within the federal government, but rather to abolish the IRS, the entitlement systems, etc.
This does not mean that all civil government does not need a definition for marriage. I have written some of my views on this previously. Biblical law properly gives the civil government power to enforce laws against adultery and for inheritance. The reason civil governments need a basic definition of marriage is to enforce these laws biblically. But should this be done at the state level? County or local level? I would prefer the latter. The more decentralized, the better, I say. And we would take back more of our nation in this regard if we followed my County Rights model—far more of it even than under a states’ rights model.
But section two of DOMA is not about a federal definition of marriage. It is about states’ rights. It reads: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.” Since it’s about states’ rights, I find it worth defending to a large degree.
I have argued that Justice Kennedy’s SCOTUS opinions have created a clear precedent that indicate the near-inevitable overturn of this provision (thereby forcing states to recognize as valid homosexual “marriages” performed in others states). Yet it’s not truly inevitable. It can still be prevented. Here are your options:
First, a Constitutional Amendment. Second, congressional limitations on jurisdiction. Third, state-level resistance.
The first option is already talked about by strong proponents of a federal-level conservative solution. This is a constitutional amendment which defines marriage. To be honest, though, the amendment need not be a definition of marriage; it could be a strengthening of states’ rights. But the proponents of an amendment only speak of a definition of marriage. This is a difficult road and the politics are against it. It would require two-thirds majority vote in both houses of Congress, and then ratification by 38 out of 50 states. Considering the makeup of the Senate, and the fact that only 35 states have been able to ban same-sex marriages within their own state, the prospects for the needed numbers looks unlikely at this point. (The process can also be initiated by a national convention requested by the legislatures of two-thirds of the states, but again the numbers don’t favor it. This has also never succeeded in the past.)
The second option is congressional limitation on jurisdiction. Most people don’t know that Congress can actually strip jurisdiction from the Supreme Court in some cases. Article 3, Section 2 states,
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In many cases, then, Congress can declare “Exceptions” and “Regulations” upon the jurisdiction of the Court, and indeed it has done so in the past.
Congress could simply amend DOMA so as to remove it from judicial review. While this is probably unlikely to occur, it is nevertheless more likely than an Amendment. It would also be superior in that it would only be protecting State power, not defining marriage at the federal level.
Yet this option has crippling weaknesses also. Congress’ power to limit jurisdiction applies only to its appellate Jurisdiction, not its original jurisdiction, which includes any case in which a State is a party. While SCOTUS does claim to be “sparing” in its use of original jurisdiction, the Congressional Research Service relates that “where claims are of sufficient ‘seriousness and dignity,’ in which resolution by the judiciary is of substantial concern, the Court will hear them.” This approach, then, would simply leave a big hole to be exploited by our activist justices, not to mention, mere legislation can always be overturned by a later Congress.
The third option is state level resistance. Shall a whole state bow before tyranny and judicial activism—even when the vast majority of its whole population believes civilization itself hinges upon denying the Court’s reckless and godless construction of the Constitution? When all legislative and judicial remedies are exhausted, what remains? The State can stand firm and say, “We shall not.” And in doing so, such a state shall invite all of the enforcement powers of the federal government—from reprimand, to censure, to financial punishment, to physical force—in order to enforce its “supreme law of the land” upon the inferior State.
In short, the ultimate end of this path, were it to play out, could be civil war. Since the right to secession was denied years ago, such a state would be considered to be in a state of rebellion. And since the national guards were fully nationalized many years ago, the guns are on the side of the federal government. The state would have to raise an impromptu militia in order to defend itself. This thought experiment could be carried further, but who wants to do so?
It’s worth pointing out at this point that this disaster is one more result of that centralizing force known as the U.S. Constitution. And it’s worth also recalling that the anti-federalists saw things like judicial tyranny and judicial activism as a result of it.
The Federal Farmer wrote,
There are some powers proposed to be lodged in the general government in the judicial department, I think very unnecessarily, I mean powers respecting questions arising upon the internal laws of the respective states. . . .
The judicial powers of the federal courts extends [sic] in law and equity to certain cases: and, therefore, the powers to determine on the law, in equity, and as to the fact, all will concentrate in the supreme court. . . . It is a very dangerous thing to vest in the same judge power to decide on the law, and also general powers in equity; for if the law restrain him, he is only to step into his shoes of equity, and give what judgment his reason or opinion may dictate. . . . I confess in the constitution of this supreme court, as left by the constitution, I do not see a spark of freedom or a shadow of our own or the British common law.
The technical issues may be slightly different, but the spirit is not a bit. We have reaped what a small but ambitious and talented faction of our framing fathers have sown. This is not biblical government, and we have reaped the judgment of God in the form of leaders who exploit unbiblical government to enforce gradually more unbiblical social mores upon us—and make us pay for the pleasure of it. Now our political options are greatly limited, weak, and the best of them portend frightful dreams.
People talk glibly about secession, nullification, and even a second American revolution. But I don’t think we realize how dire it would really be, and yet how quickly that decision may be upon us.
If there is any hope, it will only come from a massive and highly-educated revival. For the education, start here. The rest will take much prayer, courage, and preparation.
 Herbert J. Storing, ed., The Complete Anti-Federalist, 7 vols. (Chicago and London: The University of Chicago Press, 1981), 2:243–244 (2.8.41–42).