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Religious Tolerance logo

Windsor v. United States lawsuit attempting to have the federal
"Defense of marriage act" (DOMA) declared unconstitutional

2011-AUG: BLAG files motion to dismiss case.
Responsible and irresponsible parenting.

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This topic is a continuation of an earlier essay

The acronym SSM refers to "same-sex marriage.

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2011-AUG-01: BLAG files motion to dismiss case:

The Republican majority of three on The House Bipartisan Legal Advisory Group (BLAG) has consistently overruled the group's Democratic minority of two in a series of partisan decisions. BLAG filed a motion to have Windsor vs. United States dismissed. Attorney Paul Clement of Bancroft PLLC wrote the motion. He argued that Ms. Windsor does not have a legal claim because DOMA was properly applied in her case and is constitutional. 1

His motion argued a number of points:

  • He maintained that marriage is not a fundamental right for same-sex couples even though the District of Columbia and a number of states have declared it so and a growing majority of American adults believe that it should be.

  • He also argued that cases involving homosexual rights should not be subjected to heightened scrutiny. This means that the constitutionality of DOMA only needs to be analyzed on a "Rational basis." This is the lowest possible level of scrutiny. It only requires that some kind of linkage be found between the DOMA law and the furthering of some legitimate legislative goal.

  • He recommended "caution" in response to the decision by the District of Columbia and a small but growing number of states to authorize same-sex marriages (SSMs). He describe SSM to be:

    "a proposed novel redefinition of the foundational social institution. ... As an empirical matter, the long-term social consequences of granting legal recognition to same-sex relationships remain unknown."

    Editors comment: Over twenty years ago in Hawaii, SSM was a "proposed novel redefinition" of marriage. SSM has been in place in Massachusetts since mid-2004; that is more than 9 years ago, as of early 2014. This state continues to have the lowest divorce rate in the nation. SSM has been available in Canada since mid-2005; that is over 8 years, as of early 2014. It is now part of their culture, and well accepted by a strong majority of Canadians. By allowing couples to marry who are solidly in favor of marriage, and to give them and their children the usual levels of protections and rights would seem to likely to have only a positive effect on marriage.

There have been many times in the history of the U.S. when governments granted people equal rights. Examples have been the abolition of human slavery, allowing African Americans to marry, allowing women to enter professions, giving women the vote, abolishing racial segregation, guaranteeing African Americans the right to vote, allowing interracial marriages, etc. All were strongly opposed at the time by various groups. However, time has shown that all of these changes appear to have generated improvements in people's lives without any significant negative effects on the culture.

Marriage generally results in a decrease in "wild and crazy behavior," lengthened life expectancy, an increase in quality of life, a lowering of blood pressure, an improvement in overall health, and increased exercise due to more frequent sexual activity. 2 It lowers the rate of promiscuity and the incidence of sexually transmitted infections. It gives couples greater security for themselves and their children. For the Federal Government to refuse to recognize legal same-sex marriages places loving, committed same-sex couples and their children at a severe disadvantage.

  • Clement also argued that DOMA is constitutional because it met the rational test described above, He wrote:

"Whether or not same-sex marriages are as beneficial to society as traditional marriage in other respects, it would have been reasonable for Congress to have been concerned that defining same-sex relationships as 'marriages,' despite the fact that they necessarily cannot result in children without assistance—and are (and particularly in 1996, were) less likely to involve children—would weaken society's understanding of the importance of marriage for children." 1

Webmaster's personal comment: (Bias alert)

Clement curiously bases part of his argument in support for DOMA on the beliefs of legislators in 1996 when the law was passed -- almost a decade before same-sex marriage became available in the U.S. It would seem more reasonable to base the rational test on the facts of SSM as revealed today -- two decades post-DOMA..

We cannot understand his reference to same-sex couples needing assistance to have children. They are exactly in the same situation as every opposite-sex couple in which one spouse or both are infertile. Both kinds of couples need assistance in childbearing. Yet we have never seen any legislator suggest that some form of fertility test be required of opposite-sex couples who wish to marry.

Clement is here using the new argument against same-sex marriage currently being promoted by fundamentalist and other evangelical Christians. They differentiate between:

  • "Responsible parenting" which involves one man and one woman marrying, conceiving one or more children, and raising them together. The key requirements here are that the couple be married, and that the children contain a only DNA derived from both of their parents.

  • Other forms of parenting, which Clement might call "irresponsible parenting" involve all other forms of parenting, including:

    • A same-sex lesbian couple conceiving a child through assisted reproductive techniques in which the children contain the DNA of only one parent.

    • A same-sex gay couple engaging in surrogate motherhood, also in which the children contain the DNA of only one parent.

    • An opposite-sex infertile couple conceiving a child through assisted reproductive techniques, in which the child/children contain the DNA of only one parent.

    • An opposite-sex infertile couple receiving a child through adoption whose DNA is related to neither parent.

    • A same-sex infertile couple receiving a child through adoption in which the children contain the DNA of neither parent.

    • Same-sex couples who form blended families in which one spouse is a step-parent to one or more children and thus the child/children contain the DNA of only one parent.

    • Opposite-sex couples who form blended families in which one spouse is a step-parent to one or more children and thus the child/children contain the DNA of only one parent..

In their effort attack the legitimacy of same-sex marriage, religious conservatives are attacking every family containing adoptive children, step children, or some children conceived through assisted reproduction.

I am a heterosexual who adopted a child of whom I am very proud. I deeply resent what I consider to be a desperate and illogical attack by religious conservatives on families like mine.

His comment that every unmarried couple who has children weakens "... society's understanding of the importance of marriage for children" would seem to be a good argument in favor of same-sex marriage. It seems logical that if governments feel that the institution of marriage is important to children and to the country generally, they should encourage all parents to marry, including same-sex parents. BLAG's argument doesn't seem to make a lot of sense.

End of the webmaster's comments.

Continuing with Clement's points:

  • One of the major arguments that the plaintiff's lawyers used against DOMA is the Tenth Amendment to the U.S. Constitution. According to Wikipedia, it defines "the Constitution's principle of federalism by providing that powers not granted to the federal government nor prohibited to the States by the Constitution are reserved to the States or the people." 3 The Constitution did not grant to the federal government the power to define who is eligible to marry. Thus a very strong argument can be made that this power resides with the states. Prior to the passage of DOMA, hundreds of years of tradition in the U.S. recognized that the states fully specify the criteria to be met before a couple can marry. It is they who define marriage, not Congress. The DOMA law wrenched a basic right away from states that had been theirs for centuries. Curiously, conservatives who have jealously guarded states' rights in the past haven't seemed to mind.

    Clement attempted to counter this constitutional argument by stating:

    "While it is true that regulating the details of traditional marriage historically has been left to the states, it also is true that the federal government has been involved with and injected itself into marriage law when states have deviated from the traditional definition. Thus, for instance, the United States Congress banned polygamy in United States territories when faced with widespread plural marriage in the Utah Territory."

    That apparently unconstitutional intrusion on the right of Utah to define marriage was not overturned later by the courts. This was perhaps because Utah was a territory with limited powers at the time and not a state. Also it might have remained unchallenged because in the late 19th century, The Church of Jesus Christ of Latter-day Saints received what they interpret as a revelation from God that banned polygyny. This is one type of polygamy in which one man marries multiple women. Shortly after, Utah attained statehood. If Utah started to legalize polygyny today, as many fundamentalist Mormon denominations practice, it would have strong support from the Constitution for its right to do so.

  • Clement defended DOMA using an argument long promoted by fundamentalist and other evangelical Christians: that homosexuality is a chosen and changeable behavior rather than a discovered and fixed sexual orientation. He claimed that many people who experience sexual attraction to members of the same sex as young adults cease this attraction later.

His motion is consistent with a belief system found throughout conservative religious faith groups: that homosexual behavior is largely caused by bad parenting in the individual's family of origin, and that it can be readily changed through prayer and/or reparative therapy. Based on this belief, they imply lesbians and gays can simply change, become heterosexuals and get married to a person of the opposite sex. Since these same groups generally teach that all homosexuals will end up in the torture chambers of Hell, encouraging them to become "straight" might be viewed as a major contribution to their life on earth and their degree of comfort after death.

However, LGBT-positive groups, all the major psychiatric and psychological professional associations, the vast majority of human sexuality researchers, religious liberals, some mainline religious groups, etc. teach opposite beliefs -- that homosexual orientation is something that one discovers, whose main cause is genetic perhaps with some environmental aspect, and that it is always or almost always fixed in adulthood.

In a footnote, he mentioned that Edith Wilson had in fact married a man in 1951. She was in her early 20's at the time. The implication seems to be that she could have married a man as easily as marrying a woman.

Some of the individuals referred to by Clement have a bisexual orientation: they are sexually attracted to both men and women, although not necessarily to the same degree. Most bisexuals who do marry will do so with a person of the opposite-sex. This is much simpler and does not expose them to physical violence, verbal attacks, loss of employment, accommodation insecurity, etc.

Others are like Edith Wilson who is and has always been a lesbian but who, due to social pressures, attempted to pass as a heterosexual. In her affidavit she said that her brief marriage to a man did not indicate that she had a choice about her sexual orientation. She wrote:

"Although I tried to make a 'choice' about my sexual orientation by getting married to a man, I was simply unable to do so. Thus, as a matter of fact, I really had no choice at all. ... [In the] context of the homophobia that was so prevalent in the 1950s, I certainly did not want to be a 'queer.' Instead, I wanted to live a 'normal' life."

She wrote that she parted on good terms with her ex-husband. He went on to marry another woman with whom he raised a family. She added: "He telephoned me on my 70th birthday in 1999 to wish me well."

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This topic continues...

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Chris Geidner, "House GOP Leaders Say Court Should Dismiss Edith Windsor's Lawsuit, Find DOMA Constitutional," Metro Weekly, 2011-AUG-02, at:
  2. Dr. Mike Roizen & Dr. Mehmet Oz, "Say 'I do' for better health," medical column, 2011-OCT-20, at:
  3. "Tenth Amendment to the United States Constitution," Wikipedia, as on 2012-JUN-15, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Declared unconstitutional > Windsor v. U.S. > here

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Copyright © 2011 to 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2011-JUL
Latest update: 2014-JAN-26
Author: B.A. Robinson

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