Secular rationality killed the antigay legal star.
Reading the frustratingly futile discussion over at the Family Scholars blog, I was struck by the collision-of-worldviews aspect of the marriage rights debate. The antigay advocates for restricting marriage rights have floundered in their attempts to win in the legal-rational arena — from the extreme comparisons of homgamous marriage rights to incest and bestiality, to the only-slightly more rational claim that a marriage ban helps children.
Their only recourse is to tradition and emotion — religion, really — and courts have been having a hard time fitting that into the model of rights and laws that constitute the “letter” of the law.
The latest legal turn was from the First Circuit U.S. Court of Appeals, which declared that one aspect of the Defense of Marriage Act (DOMA) — the part that prevents the federal government from recognizing legal homogamous marriages — is unconstitutional. It sends the law toward the Supreme Court, where it now may get a hearing ahead of California’s state marriage ban, which also was overturned by a federal court.
The decision is relatively short and easy to read. Here is my non-expert interpretation of it.
Starting with an aside
Maybe DOMA should be invalidated on philosophical-science grounds, since the sexes are not “opposites,” but merely pretty different in some ways. DOMA says:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
Anyway, looking at this image may help a little with this argument.
Assessing an irrational law
DOMA is consequential. It obviously harms married couples or survivors who can’t access federal benefits for married people. But some of the adverse consequences for states that permit homogamous marriage are symbolically and financially devastating as well. For example, the court points out, the federal government could rescind funding for an entire veteran’s cemetery if a state buried a gay-married spouse there.
DOMA was an emotional act, motivated by religious imperatives and political expedience, rather than a legal-rational one. And the court therefore had the difficult job of figuring out how “to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.” For example, because of DOMA, federal laws regarding a whole host of cases don’t apply to homogamous couples: ethics and nepotism for politicians, the recusal of judges, bribery and threats to family members of government officials; and the Census couldn’t count legally-married homogamous couples. The law just doesn’t survive rational scrutiny.
The decision is a socially conservative one. It refuses to consider the constitutional imperative of a right to marriage. It refuses to apply the “intermediate scrutiny” that gender-based discrimination draws from the courts (which is itself less demanding than the “strict scrutiny” applied in race cases). It hews closely to Supreme Court precedent.
Instead of getting into gay rights, the court merely acknowledges that there has to be some reason to overrule state laws:
in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
In the absence of any such “interest,” you can’t just inflict harm on a specific group of people, legally. (Unless, the decision mentions, you are Antonin Scalia — who dissented, in a preview of his opinion on the DOMA case to come.) So, under equal protection principles, DOMA fails — it harms people substantially for no good reason.
With regard to federalism, the decision considers whether the federal government has a legitimate reason to in effect overturn state marriage laws:
Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.
As for the DOMA defenders’ cynical claim that it protects the interests of children, that’s just ridiculous:
Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
As in the California case, the judges here found that denying marriage rights to homogamous couples does not in any rational way improve or protect “traditional” marriage or its supposed benefits to children (despite the claims of self-described experts):
DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
In short, by the weakest possible rational standard, DOMA is both pernicious to minorities and an unjustified imposition on states:
If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.
The decision ends with a wistful look at “traditional” motivations:
Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity–not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held. For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. … But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
In short, much as “we” might love traditions, they just aren’t a legitimate basis for laws that substantially harm groups of people any more.
As Kurt Vonnegut might say, “So it goes.”
Where it goes
George W. Bush was probably right when he said the only way to prevent homogamous marriage from eventually becoming legal would be a constitutional amendment. But with the movement of public opinion that seems increasingly unlikely. And with marriage facts-on-the-ground coming from the leading-edge states, I don’t see how federal courts will ultimately block the way forward.
It is ironic, though, that a universal right to marriage — that pre-modern institution, that bastion of patriarchy, that arbitrary and undemocratic mechanism for distributing property and dividing labor — would end up enshrined in modern law because there is no other rational response to the progress of social change. That’s something.