DOMA Down

Same Sex Marriage

Same Sex Marriage (Photo credit: Wikipedia)

The United States Supreme Court ruled 5-4 against an important part of DOMA (Defense of Marriage Act), specifically  the part of the law that denied benefits to same-sex married couples. The court also ruled 5-4 that the supporters of California’s Proposition 8 (that bans same-sex marriage) did not have the standing to appeal the existing ruling against the proposition. Thus, the court left intact a ruling by a lower court that the proposition is unconstitutional. The court did not, however, make any ruling about the proposition itself.

In the case of DOMA, the court ruled against Section 3, which is the section that defined marriage as being between a man and a woman. The legal basis for this ruling is that this definition is a violation of the the Constitutional right to equal protection under the law.  Justice Kennedy, who cast the decisive vote for the 5-4 ruling, noted that ”the federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.” He also added that the law imposed  ”a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.”

While this ruling is being lauded by advocates of same-sex marriage, it is important to note that it obviously does not make same-sex marriage legal throughout the states. However, it does certainly provide a foundation for legal arguments in favor of same-sex marriage. After all, Kennedy makes it clear that the statute disparages and injures those it targets and the same principle can, obviously, be applied to other such laws.

That said, it is important to note another key aspect of Kennedy’s claims. While he clearly notes the pernicious nature of the statute, he does so in the context of how the statute is an attack on the authority of the states which legalized same-sex marriage. As such, he is putting forth a principle with two key components. The first is focused on the personhood and dignity of the people in same-sex married couples. The second is focused on states’ rights, specifically their authority to pass laws regarding marriage.

In the case of DOMA, the two principles are in harmony: DOMA violated the legal authority of the states that had passed laws permitting same-sex marriage and this law certainly seems to have been aimed at disparaging and injuring citizens. However, there is the question of which principle should be given priority when they are in conflict. That is, would the authority of a state override the equal protection clause in this case or would the equal protection clause hold?

The ruling on Proposition 8 sheds some light on this, given that the decision apparently allows each state to set its own marriage policy. This would seem to indicate that the states have the authority to pass laws that would ban same-sex marriage. However, these laws would certainly seem to run afoul of the equal protection clause and would seem to be inconsistent with Kennedy’s reasoning in the first principle attributed to him. One way to reconcile the two would be for states to have the right to pass laws that allow same-sex marriage but lack the right to pass laws that would deny same-sex couples equal protection and rights under the law. This, obviously enough, would seem to imply that same-sex marriage should be legal in all the states. However, this discussion is rather speculative and can, no doubt, be easily countered.

As might be imagined, these rulings were not met with joy by all Americans and there is still opposition to same sex marriage. For example, Austin Nimocks, who is a lawyer with the rather ironically named Alliance Defending Freedom, said that ”marriage – the union of husband and wife – will remain timeless, universal and special, particularly because children need mothers and fathers.”

Nimocks seems to be wrong on almost all counts. Marriage is rather obviously neither timeless nor universal. It could be special, but that all depends on what is meant by the term “special.” While children certainly do need parents, there is no necessary connection between children having parents and the sort of “traditional” marriage being put forth by Nimocks.

While my own view of same-sex marriage is extensively developed in  in my book For Better or Worse Reasoning, I will say a bit about the matter here.

Not surprisingly, I agree with the striking down of DOMA and agree with Kennedy’s view that the law disparages and injures citizens. I also agree that the law was a violation the authority of the states. As such, I regarded DOMA as a violation of both individual and collective rights.

I will add, however, that I think that much of our trouble with marriage stems from the fact that we have clumped together various relationships under the term “marriage” and we fail to properly consider that these relationships are quite distinct. In my book, I argue that marriage should be split into at least three categories, namely the legal marriage, the theological union (religious marriage), and the loving marriage. The concern of the state and the laws would be limited to the legal marriage, which is defined by all the various legal and economic aspects of current marriage (such as divorce, insurance, inheritance and so on). The legal marriage is just that, a legal contract, and would be open to consenting adults.

Those who value the religious aspects of marriage and see it is a matter involving God (or whatever) can have their theological unions that are handled by the appropriate religious authorities. This union would have no legal status and, as such, would allow for as much discrimination as desired. This would allow people to protect what they regard as the sanctity of marriage while also preventing them from denying other people their rights.

Those who see marriage as a matter of love would have their love unions that would also have no legal status whatsoever. They could, of course, involve personal promises and all sorts of romance. Naturally, a person could engage in all three marriages (perhaps with the same person in each case).

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13 Comments.

  1. Your categorisation that results in ‘religious marriage’ amounts to making religious marriage a club ceremony, that conforms to that club’s rules.

    Is there anything in law that distinguishes religious institutions from private or public clubs?

    It would still be discriminatory, if the religious organisations opposed same sex marriage. Given the willingness to pick and choose many other elements of scripture it seems (as it always has) that the opposition to same sex marriage is a result of bigotry, with scripture being only the smoke screen.

    With such a categorisation the freedom of association worries don’t really apply (churches aren’t preventing gay members joining or visiting – well, not explicitly). Is there any sense in which a club that is not discriminatory on membership can be discriminatory on the application of its rules, such that this discrimination would be illegal?

  2. Dennis Sceviour

    “However, there is the question of which principle should be given priority when they are in conflict. That is, would the authority of a state override the equal protection clause in this case or would the equal protection clause hold?”

    I do not get the point of this article. The law does not solve problems, the law only processes dispute.

  3. free exercise of religion would seem a sturdy block to Murphy’s claims/Q’s of illegality.

    My problem with the whole tripartite division is that can we really cleave so neatly. As legal marriage also includes something about optimizing childhood outcomes and in the US across the board married couples children do better than co-habituating or single parents and in Europe the
    “legal marriage” of domestic partnerships open to everyone do worse than children of married households.
    It seems reasonable to think of marriage as (in some way) more than a mere contract but the non-legally explicit aspects of marriage have an impact too. Thus separating the loving and religious aspects from the legal aspect could lead to much worse outcomes.

    If this is right than the question reverts to if the passive traits only accrue to traditional marriages or if separation destroys this (with the second being a much stronger argument in my book)

  4. There are so many aspects of the 14th amendment and same-sex marriage which are commonly overlooked. The 14th amendment leaves the “police powers” to regulate morality, health, etc to the states unless there is no rational basis between the policy and the objectives (the degree of rationality and burden of proof varying by degrees according to different factors). It is completely logical, constitutional, and fair to give some benefits to some groups who are doing (or is completing a step toward doing) a certain thing which the legislature determines is of benefit to society- and not give those benefits to those who are not. Same sex couples deserve most of these benefits insofar as most of them have the effect of creating a committed and exclusive relationship. Thus, certain (civil) unions may be created nationally which respect the right of states but are consistent with the equal protection clause under the scrutiny which the supreme court has decided to apply.
    If you wish to understand more about this as well as what benefits should not be extended to same-sex couples:
    https://prudentprogress.wordpress.com/same-sex-marriage-part-1/
    https://prudentprogress.wordpress.com/same-sex-marriage-part-2/

  5. Matt: “…unless there is no rational basis between the policy and the objectives.”

    That pretty much sums up the problem. What’s the rational basis for denying marriage rights based on a couple’s relative gender?

    Your copypaste seems to have forgotten to include that…

    @Mike

    I’m a little iffy on splitting off loving marriage from legal marriage. I could see distinguishing a loving relationship from a legal marriage, but I’m not sure how a ‘love marriage’ is a kind of marriage.

    It sounds like the sort of thing you don’t want to hear someone say:

    “Umm, who is that?”

    “Oh, that’s just my legal partner…but don’t worry, you’re my love partner!”

  6. Matt,

    Though you describe a reasonable appreciation of the variety of human sexuality you seem to be perpetuating the unreasonable bias against it.

  7. Matt,

    Who are (is?) Prudent Progressive(s)? Looks like it’s the opinionated stuff of some individual disguised as a collective. I’ve no problem with the opinions of some individual – that’s all my blog is; but shouldn’t they (he) be a bit more open about who the site owner/author is?

    The PP site looks like the site of someone who is anti-gay but who accepts the inevitable equality that has been won, yet attempts to continue the bias against homosexuality under the guise of being reasonable and objective.

  8. je,

    “As legal marriage also includes something about optimizing childhood outcomes and in the US across the board married couples children do better than co-habituating or single parents”

    Is this due to marriage alone, or are there other factors involved? Other factors like social class. Economic exclusion?

    Marriage is a cultural practice of the middle class. It brings all kinds of economic benefits, security, and positive discrimination (people looking after people just like them).

    “and in Europe the “legal marriage” of domestic partnerships open to everyone do worse than children of married households.”

    Do you have any stats to back that up? And it’s not like Ann Coulter claiming sleepy Brussels is a blood bath. Again it’s due to class and economic discrimination. There’s a firm attitude among married middle-class Europeans that only married people like themselves should have access to secure and well paid employment.

    “It seems reasonable to think of marriage as (in some way) more than a mere contract but the non-legally explicit aspects of marriage have an impact too.”

    Yes, the positive discrimination. “These are good solid conservative people, married just like us, they deserve secure well paid jobs.”

    “Thus separating the loving and religious aspects from the legal aspect could lead to much worse outcomes.”

    What religious aspects? Only 10% of Americans attend regular religious services. The rest may say they’re worshippin’ Jesus, but they’re doing it from the shopping mall. With the atheists.

    Part of the performance of the middle-class wedding is the church bit. And it’s as much to say “Hey we did all the trimmin’s, even hired out a church and priest for the day”. It’s a day out. I’ve been at these things. There’s very little praying. It’s dressing up, eating, drinking.

    But what are you really suggesting with the religious thing? Let’s forget about gays for a moment. Should Jews only be allowed marry Jews? Catholics, Catholics?….If a heterosexual couple are not religious, should they be allowed marry at all? Should atheists not be allowed marry?

    “If this is right than the question reverts to if the passive traits only accrue to traditional marriages or if separation destroys this (with the second being a much stronger argument in my book)”

    Traditional marriages? You really mean right-wing conservative marriages – that come with all the privileges and protections, that the exclusionary power of economic hegemony brings.

    A funny factoid is gay people used to be more right-wing in their voting habits, before the Republicans made their persecution a central policy. Gay people didn’t like subsidising the children of the rural “faith’n'family” brigade. Now the America right believe the more people they alienate, the close to power they come – it’s a bad strategy in a democracy.

    Many right-wing conservatives believe that same sex marriage is an attack on their “traditional” privileges…A deliberate chipping away at their power. This is possibly true. The communists are clever like that.

    My objection to same sex marriage, is that I’m so tired of hearing everyone go on about it. Can we just give it to them….and hope everyone will shut up about it for five minutes. Could we have a moratorium for two or three years, to give everyone’s head a rest.

  9. Steve Merrick

    je wrote: “…in Europe the “legal marriage” of domestic partnerships open to everyone do worse than children of married households.”

    Do you have any evidence to back up this assertion? I ask because same-sex partnerships are so new to all of our countries that I wonder how there can have been enough time to gather statistics?

  10. Steve Merrick

    Trying to re-find data. I know its true that non-married US and civil unions in general (civil unions being “marriage-lite”) lead worse, though i don’t think that that separates out by sexuality.

  11. JRMC

    on religion: 56% say it is very important in their lives and 40% attend church regularly so your 10% seems like a stupid number from nowhere.
    http://www.pewforum.org/How-Religious-Is-Your-State-.aspx

  12. JRMC

    What i meant about the religious aspect really tied into the idea of a deinstutionalization thesis. (see link and links in post)

    http://www.nationalreview.com/agenda/299619/same-sex-civil-marriage-deinstitutionalization-and-counterfactual-future-reihan-salam

    It seems to me more than class and economic discrimination. The institution forms a pedagogical function and reinforce stronger bonds (as seen in higher separation rate among non-married cohabilitating long term relationships)

    on religion: 56% say it is very important in their lives and 40% attend church regularly so your 10% seems like a stupid number from nowhere.
    http://www.pewforum.org/How-Religious-Is-Your-State-.aspx

  13. the “religion thing” is that religious institutions, due to their self-definition being about the first/highest/most important things and deepest questions are granted explicit protection from state interference in the form of the free exercise clause.
    Thus

    “Is there any sense in which a club that is not discriminatory on membership can be discriminatory on the application of its rules, such that this discrimination would be illegal?”
    cannot be a valid argument.

    “Traditional marriages? You really mean right-wing conservative marriages – that come with all the privileges and protections, that the exclusionary power of economic hegemony brings.”

    ahh, that’s cute.
    But really traditional marriage seems to be the generic term for monogamous heterosexual marriages (perhaps excluding kardashian-humphries, etc)

    The religious aspect gets wrapped up in the moral aspect. The strengthened idea of permanence, etc.

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