Is DOMA Unconstitutional?
From my series on GLBT inclusion in the church and other posts, regular readers will not be surprised that I believe that the 1996 law known as the [sic] “Defense of Marriage Act” or DOMA is unjust since it prevents the federal government from recognizing same sex marriages (even from states where they are legal) and from granting the normal federal rights which go with marriage (e.g., spousal benefits from Social Security; joint tax filings;). But is it unconstitutional as well? I write as an amateur. I am neither a lawyer nor a constitutional scholar. I invite those who are to check my reasoning. But I think DOMA is unconstitutional.
First, let it be noted that in 1996 when DOMA was passed, not one state in the U.S. allowed same-sex marriages. And most gay rights activists were focused on other issues than marriage equality. But there was a fear that Hawai’i’s Supreme Court was about to rule in favor of same sex marriages (it didn’t) and DOMA was passed as a kind of preemptive strike. It was also designed very politically to hurt then-Pres. Bill Clinton because Republicans assumed he would veto it and then Sen. Bob Dole (R-KS) would campaign against him with that wedge issue all year. But Clinton knew how to protect himself and so he calmly threw gays and lesbians under the bus by signing DOMA and robbing Dole of an issue.
We now have 6 states (MA, VT, ME, NH, CT, IA) which recognize same-sex civil marriages. I expect the following states to follow within the next couple of years: NY, CA, NJ, WA, and RI. Several others will move to have civil unions, which is often a first step to same-sex civil marriage. New York and the District of Columbia have laws recognizing same-sex marriages performed in other states.
The Constitutional issues surrounding DOMA are mostly tied up with the “due process” and “equal protection” clauses of the 14th Amendment to the U.S. Constitution, which relate to the definitions of “marriage” and ‘spouse” in DOMA and the “full faith and credit clause” which refers to powers reserved to the states. Public acts by one state must be recognized by the other states and by the federal government, unless those public acts are unconstitutional. Supporters of DOMA argue that there is no right to marriage and thus DOMA is constitutional. But Loving v. Virginia (1967) found that marriage was an inalienable right–this case killed state laws that forbade interracial marriages.
Defenders of DOMA reply that marriage has traditionally been defined as between a man and a woman. They imply that this definition has never been modified over the entire length of human civilization. This is patently false. Marriage has had numerous definitions. In some societies plural marriages are still recognized as is concubinage, but these have long been banned in the United States. Marriage today assumes that both parties are adults and legally able to enter into contractual relations, but traditionally women were married when they were barely post-pubescent (the Virgin Mary was probably no more than 14) and given away by their fathers to much older men–which today would be considered child abuse and pederasty.
Supporters of DOMA reply that if same-sex marriages are recognized the door is open to “marriages” between humans and animals (bestiality) or incestuous marriages (which have been rejected previously by courts). But in Lawrence v. Texas (2003), which struck down state “sodomy” laws forbidding same-sex acts between consenting adults, the Supreme Court seems already to say that gay couples are NOT the same as pederasts or those practicing bestiality or other obscenities to which conservatives often compare them.
The logic of Lawrence v. Texas combined with Loving v. Virginia seems to me to give strong grounds for believing that DOMA is unconstitutional. But defenders of DOMA claim that without something like it the religious liberty of those who believe same-sex marriage to be sinful will be violated. I don’t think so. No church, synagogue, mosque, etc. which disagrees with same-sex marriage could be forced to perform them or allow their facilities to be used for them. The First Amendment protects them–just as it did for churches, etc. which believed that interracial marriage was wrong in the wake of Loving v. Virginia. Most churches and other religious institutions CHANGED their views and accepted interracial marriages, but neither change nor resistance to it is properly the concern of the courts or the secular government.
In fact, I would argue that DOMA (and state bans on same-sex marriage) violates the religious liberty of faith groups who recognize same-sex marriages, like my church. We can perform same-sex “weddings,” but our rites do not have the force of law. (Perhaps the solution is that the government should get out of the marriage business altogether and allow “marriage” to be a completely religious practice with no legal dimensions.) Also, Christian marriage is not identical to legal marriage and never has been. Legal marriage allows me to sue my wife if I no longer want to live with her–not much Christian to that.
Nevertheless, as a civil, legal, matter, it seems to this amateur that the Defense of Marriage Act is unconstitutional.
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