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Judge H. Lee Sarokin Headshot

The Republican Oath of Hypocrisy

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Republican members of Congress are signing oaths right and left and in the process surrendering their independence as legislators and probably violating their oath of office. In addition to their commitment not to raise taxes or eliminate deductions and subsidies, apparently they have taken an oath of hypocrisy as well. They are unfazed by constantly declaring that the country's economic policies would be easily solved if only the intruding federal government would stay out of the way and let the market solve the problems, and simultaneously bemoaning that President Obama (the government) has not done enough to stimulate the economy and increase jobs.

Likewise they pledge allegiance to states' rights and the principle of federalism while at the same time want to fight in the courts for the federal government's right to legislate as to marriages, an area that has been preserved and reserved to the states since our country's birth. The Attorney General in the clearest of terms and in the greatest display of good sense has decided not to defend the 1996 Defense of Marriage Act (DOMA). The Republicans apparently have decided to create some jobs by hiring their own counsel to defend the statute using taxpayer money. Marriage has suddenly come within the jurisdiction of the federal government. The EPA should be abolished, but not DOMA.

Putting aside for the moment that the law probably violates Article IV of the Constitution by allowing states to ignore marriages in other states, how can the Republicans, the champions of states' rights, possibly justify this intrusion into what has been the traditional bailiwick of the states? The argument against the statute is that Section 3 violates the 10th Amendment, the stronghold of state sovereignty. The government cannot regulate possession of handguns, because it is a local matter (United States v. Lopez) but it can regulate marriages! The Attorney General's opinion declares that the statute fails to mean the heightened scrutiny standard required because of the "documented history of discrimination" and the obvious classification "based on sexual orientation."

There are many who hold understandable objections to same-sex marriages based upon tradition, religion and personal morals. But what is totally lacking in the opposition is evidence that allowing same-sex marriage harms anyone. The same dire predictions preceded freeing the slaves, allowing interracial marriage, and the most frightening of all -- allowing women the right to vote. But the sky did not fall, and it will not fall when members of the same sex marry. Aside from the direct intrusion into a state's sovereignty regarding marriage, the statute denies more than 1000 rights and privileges otherwise available to married couples.

The statute is wrong as a matter of law and is cruel as a matter of policy. Rather than the oaths they have signed, the Republicans might better consider: Primum non nocere (First do no harm).

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