Wednesday, June 26, 2013

Are We Defending the Indefensible?: The Death of DOMA and Proposition 8

"Ding-Dong, DOMA's dead!" trumpeted one of my friends on Facebook at the news that the U.S. Supreme Court had declared unconstitutional a major part of the federal Defense of Marriage Act (DOMA). Another facebook friend posted this picture of the rainbow-hued Supreme Court in celebration of today's two decisions that sounded death knells for proponents of traditional marriage.

The DOMA decision (U.S. v. Windsor) concerned the right of the federal government to define marriage as between one man and one woman for the purposes of receiving benefits under federal law. The Supreme Court held that the definition of marriage should be left up to the states. The second decision (Hollingsworth v. Perry) focused on a California state ballot initiative known as Proposition 8.  Through Proposition 8, Californians had voted to amend their state constitution to declare that marriage should be between one man and one woman. The district court declared Proposition 8 to be unconstitutional, and the Supreme Court, based on technical grounds, refused to revisit the lower court's decision.

What jumps out most in both cases is the refusal of the executive branch to defend the validly-enacted laws. The Obama administration refused to defend DOMA, and the U.S. Congress had to intervene to champion its own legislation. In California, the state governor refused to defend Proposition 8 in court, so a body of citizens stepped in to press the case through the judicial system. By the time they came up for consideration by the Supreme Court, both laws had been abandoned by the governments supposedly in charge of enforcing them. So, from an ideological perspective, the Supreme Court decisions were almost after-thoughts. The battles had already been lost.

The battle may be lost in the court of public opinion, as well. Support for gay marriage has steadily grown over time, at least as measured in the polls, and a majority of Americans now appear to favor same-sex marriage. Take my facebook friends, for example. These two lovely ladies are married with children, and are as heterosexual as the day is long, as far as I know. Firmly ensconced in the middle class, they live in the suburbs. One is married to a lawyer and the other to a government official. They are the new normal.

I don't have any idea why these particular friends disliked DOMA, but they represent the prevailing cultural zeitgeist, at least on the Eastern seaboard. And the calling card of this culture states, "Let them love and be happy. If two people love each other and want to get married, why would anyone want to get in their way?" As some Net pundit opined recently, emotion is everything today. In contrast, the Middle Ages were the age of faith, and the Enlightenment was the age of reason. But modernity is the age of feeling. From the modern viewpoint, love is about mutual satisfaction that can be ours right now, today. It's not love if you can't smell it, taste it, feel it, have sex with it, raise children with it. "Why can't you just be best friends?" a priest once asked a gay couple. They shook their heads, laughing. They wanted more.

This romanticization of love, and of married love in particular, eclipses any other kind of love in the modern imagination. But other loves do exist and ultimately can bring just as much satisfaction. Priests know this, as do many members of religious communities. Unmarried schoolteachers know this, and widowed grandmothers know this. Siblings know this, and parents and children know this. True love doesn't require sex, and neither does true friendship. And marriage doesn't automatically equal true love, unless both people are willing to persevere to the end, even (and especially) when they don't "feel" like it. But in this age of feeling, tyrannized by emotion's fickle inconstancy, we may not be able to convince anyone that "feeling" is not the arbiter of justice and right.


  1. I disliked DOMA for the same reasons the Court did: The federal government has no power to legally define marriage. Such decisions are left to the states under the 10th Amendment.

    The section of DOMA that was struck down created big problems in tax law and Bankruptcy Law where the state considers the couple married and the federal government does not. Windsor was a tax case. US Bankruptcy Courts in California found combining DOMA with state law completely unworkable and were simply ignoring it. Good riddance to a bad law.

    1. As Scalia's dissent points out, there will still be choice of law issues -- what if a couple contracts a marriage in one state and then moves to another state where there marriage is not recognized, for example. Getting rid of the definitional part of DOMA doesn't solve all the legal hassles.

  2. As for the gay marriage issue....

    I've been saying for some time that gay marriage is more about what straight people think about marriage than about gay rights.

    Marriage is no longer a public institution oriented toward procreation, but a private institution defined in whatever way the couple would like.

    But I see this not so much as a rejection of traditional marriage (straight people still do get married, procreate, and stick together to the end), but a libertarian impulse that we do not want the government prying into the details of our intimate relationships. It's more of a rejection of traditional Catholic political theory and social teachings than teachings on marriage.

    This is where social conservatives misread the gay marriage issue, and the entire "Culture War". What is happening is not a rejection of conservative positions, but a rejection of social conservatism itself.

    This is why happily married heterosexuals with children support gay marriage, even though they may not personally agree with it.

    1. Throwing same sex marriage back to the states, will eventually require further legislation since couples will move across state lines to force the issues in every state. And once gay marriage is legislated and mandated the government will intrude farther and farther into family lives since "family" is being redefined. It is a myth to think that these decisions mean nothing for heterosexual families. Our children will see "new families" in their textbooks. Gayness and bi-sexuality will be promoted (already happening.)
      The reason for the rush to join the "rainbow parade" is political correctness. But here's the important point--TRUTH is not a matter of consensus. Truth exists even when it is being buried.

    2. I agree that the legal mess is far from settled.