Agudath Israel of America has taken strong exception to the Obama Administration’s decision to no longer defend the constitutionality of the federal Defense of Marriage Act (DOMA), the law of the land for the past 15 years. The following is the Agudah’s statement:
Agudath Israel has been among the groups in the forefront of efforts to maintain the traditional definition of marriage in law and society. We played an active role in crafting and promoting DOMA, and were invited during its consideration to present oral testimony before the Senate Judiciary Committee. And we have remained engaged in the issue whenever the question of redefining marriage has come before state legislatures, the courts or the voters.
Attorney General Eric Holder, in a letter to House Speaker John A. Boehner explaining the change in policy, writes that circumstances have changed the “legal landscape” since enactment of the statute. But when he criticizes “moral disapproval” of gay behavior and labels the beliefs of millions of American as “animus,” he strays far from a defense of constitutional principles. Indeed, his rhetoric demonstrates the kind of anti-religious hostility disallowed by the First Amendment. Religious values, ethical imperatives, historical tradition are all swept away – no, disparaged – by this destructive characterization.
The Attorney General’s suggestion that laws relating to homosexuality be given “strict scrutiny” — the highest protection our law has to offer – is a leap that flies in the face of Supreme Court jurisprudence and has never been asserted by any Administration of either party. In fact, despite his protestations, the legal landscape Mr. Holder refers to itself negates the notion that a higher level of constitutional scrutiny is warranted. The striking down of anti-sodomy laws, the repeal of “don’t ask, don’t tell,” the enactment of hate crimes legislation, the myriad state and local protections, belie the need for strict scrutiny. The legal analysis is both wanting and misguided. For, as Agudath Israel argued in Massachusetts v U.S. Department of Health and Human Resources, the traditional definition of marriage will constitute a “compelling state interest” and survive strict scrutiny just a surely as it will satisfy the “reasonable basis” test.
Finally, by connecting discrimination against gays to the right of gays to marry, the Administration fails to see the inherent social, moral and legal difference between the two realities. The issue of gay marriage has little to do with civil rights and everything to do with changing our society’s perception of gay behavior and, as noted above, the depiction of those who view homosexuality with “moral disapproval” as persons filled with religiously-instilled hatred and lies.
The Administration’s decision represents a provocative step toward undermining our nation’s traditional values and moral fiber. It is a sad day.