Faith & Social Justice: In the spirit of Richard Overton and the 17th C. Levellers

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.

August 2, 2009 - Posted by | civil liberties, courts, GLBT issues


  1. Hi Michael. You say that churches won’t be pressured by the government to perform same-sex marriages. Does that mean that they’ll be able to keep their tax exempt status while following their conscience? You cite the example of interracial marriage, but Bob Jones University lost its tax exemption because of its stance on interracial dating.

    Comment by James Pate | August 2, 2009

  2. James, BJU was never tax exempt. No university is. What they lost was the ability to take tax money for scholarhips, pell grants, and student loans because of its policy. No church or minister who objected to marrying people of different races ever lost tax exemption or received any other govt. pressure.

    Personally, I’ve never agreed with the tax-exempt status of churches. I think that’s a form of govt. subsidy and therefore an endorsement of religion. And that has never been tested in the courts. But when the IRS has revoked church tax exempt statuses it has been for overt campaigning for particular politicians or parties–same as for any other charity.

    I can’t say how courts will rule, only what it seems to me the constitution says. I can guarantee that if the govt. tried to pressure churches to violate their consciences, the ACLU would defend the churches.

    Comment by Michael Westmoreland-White | August 2, 2009

  3. I have to disagree with you on the Bob Jones case, since the opening paragraph of Bob Jones vs. the United States says:

    “Section 501(c)(3) of the Internal Revenue Code of 1954 (IRC) provides that ‘[c]orporations . . . organized and operated exclusively for religious, charitable . . . or educational purposes’ are entitled to tax exemption. Until 1970, the Internal Revenue Service (IRS) granted tax-exempt status under 501(c)(3) to private schools, independent of racial admissions policies, and granted charitable deductions for contributions to such schools under 170 of the IRC. But in 1970, the IRS concluded that it could no longer justify allowing tax-exempt status under 501(c)(3) to private schools that practiced racial discrimination, and in 1971 issued Revenue Ruling 71-447 providing that a private school not having a racially nondiscriminatory policy as to students is not ‘charitable’ within the common-law concepts reflected in 170 and 501(c)(3).”

    I got this from a link to findlaw on wikipedia.

    Comment by James Pate | August 2, 2009

  4. Both Southern Seminary and your church in Louisville have the same 501(c)(3) tax-exempt status. So, James is correct. Almost all religious organizations in the United States have a 501(c)(3) status. This includes large private universities like Baylor University and small Baptist churches.

    The constitutionality of “tax-exemption” for religious schools, church, organizations, etc. has been tested more than a time or two. The most significant decision is Walz v. Tax Commission (1970). That decision actually articulated the third prong (No-Establishment) of what was to become the Lemon Test.

    Comment by Big Daddy Weave | August 2, 2009

  5. Well, I appear to be wrong about the details of the Bob Jones case. I still think DOMA is unconstitutional–and I think the courts will use the First Amendment to allow those churches and other religious institutions who want to discriminate against same-sex couples to do so. (I also think that very few same-sex couples will want to be married by ministers or in churches that believe their relationship to be anathema. They’ll choose friendlier places of worship.)

    BDW, I like the Lemon test and wish it was restored to church-state issues, but I think tax exemption for churches is a form of semi-establishment by Caesar. The Lemon Test is good, but I disagree with how it was applied in the Walz v. Tax Commission. But I recognize that my view there is not likely to ever prevail.

    Comment by Michael Westmoreland-White | August 2, 2009

  6. But religious groups (whether they be small churches or large educational institutions) are not the only types of organizations that receive 501(c) tax exempt status from the U.S. government. It would be rather unfair to grant secular non-profits tax-exemption and not religious non-profits. It does seem, however, that were tax-exemption revoked for religious groups and religious groups alone, the principle of neutrality would be violated as the government would be disfavoring religion.

    Comment by Big Daddy Weave | August 2, 2009

  7. That may be a good argument for taxing charities (although for practical reasons, I’m against that), but not for making religious institutions tax exempt. It does seem like one of those areas where neutrality is not possible–one either favors religion over non-religion by giving churches (mosques, etc.) tax exemption (and not, say, philosophy clubs or Shriner’s offices) or one disfavors religion compared to nonreligious charities.

    Comment by Michael Westmoreland-White | August 3, 2009

  8. I appreciate your opinion on these matters, Michael. I ultimately disagree with you, but I am challenged by your views (not on morality in this case) on government involvement. To what extend should the government legislate morality? I think our government has grown far larger than our forefathers intended it.

    Comment by brochris | August 3, 2009

  9. Separation of church and state
    Separation of church and state prohibits religious favoritism and cannot promote one religion over another.

    In regard to passing judgement in cases where separation of church and state is concerned, tests are set up.

    1) the Lemon test, named after Alton J. Lemon from a Supreme Court case (1971)

    2) O’Connor’s Endorsement test

    3) Kennedy’s Coercion test

    If any of these three tests are violated, the law is deemed unconstitutional. The same sex marriage ban would be endorsing one religious view over many others, thus creating exclusionary v. Inclusive types of religious doctrine. Such a ban would coerce individuals to support or conform to a specific religion. This government entanglement is unconstitutional.

    Comment by 1EqualityUSA | August 3, 2009

  10. Question Michael:As a Christian do you believe marriage between people of the same sex moral ?? Can you give biblical precedent for it ?

    Comment by Paul | August 3, 2009

  11. Bro. Chris, almost all legislation involves morality in some sense. Paul, if you go to my page marked “popular series,” you will see one marked “GLBT Christians.” I make a biblical-theological case for same-sex couples there.

    Comment by Michael Westmoreland-White | August 3, 2009

  12. […] this morning, I read two articles on marriage.  The first dealt with one man’s opinion as to why he thinks the federal government should overturn the Defense of Marriage Act of 1996.  In order to keep this from being a political blog, I won’t comment on his entry except to […]

    Pingback by We Married Early, and So Should You! | Chris & Abby (and family!) | August 3, 2009

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