DOMA Falls at the Supreme Court-Good Riddance
June 27, 2013
R. Tamara de Silva
Yesterday, the United States Supreme Court struck down the Defense of Marriage Act ("DOMA"). The Defense of Marriage Act was signed into the law in 1996 by President Bill Clinton and barred the recognition of same-sex marriage spouses in same sex marriage for insurance purposes, Social Security survivor benefits, housing, criminal sanctions, copyright, veterans' benefits, immigration and tax purposes. DOMA had allowed the couples married under the states' various legal regimes on marriage to be treated unequally vis-a-vis well in excess of over 1,000 federal statutes and regulations and it passed on the unequal treatment to their children. The Supreme Court's ruling was not based on federalism grounds, but the liberty interest protected by the Due Process Clause of the Fifth Amendment. The Fifth Amendment's Due Process Clause prohibits the federal government from denying any person equal protection under the law. At its legal essence, DOMA forced married couples to be treated differently, withholding what the Court termed as the "dignity" conferred by the status of marriage- by use of the federal statute. The Court did not find a valid purpose for its doing so because, all personal religious and sensibilities aside, there never was an articulable legal one.
Justice Scalia's long dissent in U.S. v. Windsor took issue with what many critics of DOMA had portrayed as the seeming institutionalization of bigotry. Justice Scalia is right in that many people oppose gay marriage for religious reasons and wish the government not only comply with their personal beliefs but also enforce them on everyone else. This does not make them bigots certainly but it does make them unaware of the fact that we are not residing in a theocratic state and no one gets to impose their religious conscious on anyone else.
Moreover, marriage has been a secular institution much longer than it has been a religious one. The nascent church in Ancient Rome did not have a marriage rite. Marriage has been recognized from the time of recorded history and throughout the ancient world before there was any church. In the United States, the Courts and the Legislature are sovereign from the theological realm because, much to the chagrin of so many, we do not live and have never lived in a theocracy. As I have written before elsewhere,
When political groups speak of religion and the Christian roots of America as evidenced by reference to God in the Declaration of Independence for example, they tend almost never to also refer to the suspicion of any established religion by the state that was so deeply held by the Founding Fathers. For example, the historical and cultural anti-Catholicism of many of the Founding Fathers, whether carried over from the Church of England or not, was profound and pervasive. Yet what was agreed from ab initio about America was that it must never be allowed to be a theocracy where anyone's religious freedom would be curtailed by the joining of the state and a church."
What is true is that the very same arguments, including references to Scripture and articulation of end of civilization scenarios, are precisely identical to the arguments used against desegregation and interracial marriage-not that long ago. Take for instance the trial judge's reasoning in
Loving v. Virginia, the case that would at the High Court strike down Virginia's anti-miscegenation law,
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
Many supporters of DOMA argued that they were not against gays per se, just defending traditional marriage, which only permitted marriage between a man and woman. Indeed part of Justice Scalia's dissent is concerned with the argument that at the time of the Constitution's drafting, marriage was understood as between a man and a woman-that this was traditional marriage. The end of slavery and allowing women the right to vote was not exactly addressed in the Constitution either-nor precisely was the internal combustion engine or the federal government's regulation of it. Justice Scalia knows that it took the United States Supreme Court to make it unconstitutional for black children to have to go to separate schools as white children, to allow inter-racial couples to marry and to stop the systemized infiltration of racism that gave birth to the Klu Klux Klan Act-what became the Civil Rights Act. While originalism has its place-any quest for ideological purity in its application at some point devolves into the realm of farce.
The historical record on what is traditional marriage is not exactly that clear cut either. Throughout the ancient world the primary purpose of marriage was to secure social and political alliances and for economic purposes. It was not until 1753 in England and the passage of the Marriage Act of Lord Hardwicke that the Church of England stop permitting what we would consider very irregular marriages-where one of the parties was a child, one of the parties was already married, or the parents did not know. Your idea of "traditional marriage" depends quite a bit on the length of your historical memory.
R. Tamara de Silva