Note: Mr. Whelan claims that I have some facts wrong. I am trying to sort it out. By late afternoon on Sunday I will either delete this advisory or replace it with a correction.
Martin Edward Whelan III is a very smart guy. As an undergraduate at Harvard he was Phi Beta Kappa. Whelan graduated Harvard Law magna cum laude. Whelan is also a religious fundamentalist which means that he is not so smart after all.
Thursday, the former law clerk to Justice Scalia writes in his National Review column, This day in liberal judicial activism:
2009—Purporting to be carrying out its duty to defend the Defense of Marriage Act, the Obama administration’s Department of Justice instead sabotages that law. Abandoning strong arguments that had been successful in previous litigation, DOJ asserts in a brief that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.”
Factually, the administration supported DOMA in a brief two months earlier on the premise that DOJ has an obligation to support government statutes if they can be reasonably defended. Two months later the administration came to the conclusion that it was no longer possible to reasonably defend the odious DOMA.
Whelan makes no attempt to posit an argument in support of the idea that DOMA was rationally related to a legitimate government interest in what they were calling “responsible procreation.” There never was a coherent argument in that regard. DOMA did not exist because of a need for encouraging responsible procreation. It was the product of reverse engineering. Responsible procreation was an argument that was manufactured to defend DOMA. A legitimate argument requires one to demonstrate a cause and effect relationship. It did not exist.
Whelan goes on to quote from a supporter of marriage equality, Dale Carpenter, who penned an article for The Volokh Conspiracy. Quoting Carpenter, Whelan writes:
This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.
Carpenter was correct and prescient. That gives Whelan monumental sadness. The Church was heavily invested in marriage discrimination and Whelan will never get over the ruling in Obergefell v. Hodges. For him it was an end-of-world event. Without United States v. Windsor, which overturned most of DOMA, Obergefell might have been delayed or not have happened at all. More than four years have elapsed since Windsor and the sky has not fallen. It is unlikely to do so in the future.