DOMA Is Teetering. Let It Fall!

Posted on March 29, 2013

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The Supreme Court is hearing arguments this week on the 1996 Defense of Marriage Act (DOMA), and I’m hoping that the law will be struck down.  It’s sort of hard to support something that denies basic Federal allowances and benefits to folks like Staff Sergeant Tracy Dice Johnson, whose spouse was killed in Afghanistan.  Not only is she denied survivor benefits, she did not receive so much as the flag from her spouse’s coffin, just because her spouse happened not to be a guy.  But I’ve been known to say that making laws and policies based on emotional arguments is bad juju, so let’s move on and look at the legal basis of the law.

Um… oh, wait.  There isn’t one.  Justice Elena Kagan gets bonus points for digging up the 1996 report by the House Judiciary Committee, in which they rationalize the passage of DOMA: “I’m going to quote from the House Report here…  ‘Congress decided to reflect and honor a collective moral judgment’ and to express ‘moral disapproval of homosexuality.'”

Actually, the full comment is on pages 15-16 of Report 104-664:

But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect.  Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.

Wow.  Really, Congress?  Dragging religion into the mix?  Forgetting something about the separation of Church and State?  Okay, they’re not exactly establishing a religion with that comment, but they are certainly and specifically showing their marked approval and legislative support of Judeo-Christian religious tradition.

But wait!  There’s more!  Enjoy this excerpt from page 13:

At bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.

Excuse me while I fall over laughing.  If this were true – that DOMA is all about responsible procreation and protecting children – then why aren’t we prosecuting premarital sex, or adulterous baby-mamas like Kim Kardashian?  Why aren’t we sterilizing people who carry genetic diseases, or who we just deem bad candidates for parenthood?  Why do we let married women use contraceptives?  Why are parents allowed to divorce?  Why do we let old people or sterile people get married?  It’s not like they’re going to produce children.

What the hell, if this is what it’s all about, then maybe Congress should take a page from Hitler’s book and establish the Cross of Honor of the American Mother, for fine examples of “worthy” and “genetically fit” American mothers who have raised at least four children.  And they can annul my worthless heterosexual marriage while they’re at it, bend my dog tags and stamp my meal card “no dessert,” because I am intentionally child-free.  See, abominations like me are what happens when people get those pesky rights and all.

As I have written before, it’s not like heterosexuals have been shining examples of the nuclear family lately.  Marriage rates are down, divorce rates are up, out-of-wedlock births have skyrocketed.  If “government has an interest in marriage because it has an interest in children,” shouldn’t they, like the American Academy of Pediatrics, applaud and encourage stable, two-parent homes – no matter the gender?

I am looking forward to the outcome of the case currently under discussion, because it’s not looking good for DOMA, or for Speaker John Boehner, who spent over $3 million in taxpayer money to try to defend the law after the Obama administration refused to.

DOMA may unravel along two lines: equal protection under the law, and Federalism (states’ rights).  The case was brought by Edith Windsor, who was legally married under New York law at the time she was widowed, and yet had to pay the IRS a staggering $363,000 in estate taxes that she would not have had to, as she puts it, if her spouse Thea had been Theo.  That’s the equal protection part.

As for the Federalism question, as Justice Kennedy has said:  “The question is whether the federal government, under our federalism scheme, has the authority to regulate marriage.”  Considering that the Tenth Amendment reserves to the States all powers not specifically granted to the Federal government,  I’m going out on a legal limb here and saying no.

Related articles:

DOMA, Gay Marriage, and Baby Mamas

One Year After “Don’t Ask, Don’t Tell,” Gays Still Not Equal… Anywhere

The Right Decision:  No Defense for DOMA

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