In his recent decision in Gill v. Office of Personnel Management, federal judge Joseph L. Tauro held unconstitutional Section 3 of the Defense of Marriage Act (DOMA). In reaching this result, Judge Tauro, who was appointed by Richard Nixon, addressed a subtle but important issue of constitutional law.
The federal government provides many benefits to married couples. For example, the spouse of a federal employee is entitled to medical coverage, the spouse of an individual covered by Social Security is eligible for retirement and survivor benefits, and married couples who file joint tax returns usually pay considerably lower federal income taxes than individuals who file separately.
Before 1996, all federal programs providing marriage benefits left the definition of "marriage" entirely to the states. If a couple was legally married under state law, then they were "married" for purposes of federal law. This was so even though States often have quite different rules about marriage. Some states, for example, recognize common law marriage, most do not. Some states allow people to marry without parental consent at age of 15, others require them to be at least 18. Some states permit individuals to terminate a marriage without any finding of fault, others do not. In all these circumstances, federal law defers to the state's definition of marriage. Indeed, from the very founding of our nation, the definition of marriage has been understood to be a state -- rather than a federal -- responsibility.
In 1996, however, Congress suddenly jettisoned this deeply-rooted tradition and attempted to interpose a new federal definition of marriage.The precipitating event was a debate in Hawaii over the legal recognition of same-sex marriage. Vilifying gays as "immoral" and "depraved," and condemning same-sex marriage as "perverse" and as "an attack on God's principles," members of Congress pushed through Section 3 of DOMA, which for the first time in our nation's history adopted a federal definition of marriage, confining "marriage" for federal purposes to only those legally-recognized marriages that are "between one man and one woman."
What makes the Gill case so interesting is that it raises a question somewhat different from that posed by State laws that decline to recognize same-sex marriage. Because the states have primary authority over the institution of marriage, they can appropriately consider a broad range of factors in deciding who can marry, in what circumstances, and subject to what conditions. The federal government, on the other hand, has no such authority.
For example, a state can lawfully enact a law prohibiting any person under the age of 18 to marry, but for Congress to enact such a law would clearly intrude on the authority of the States. Similarly, whether or not a state can constitutionally prohibit same-sex marriage, Congress plainly has no authority to do so.
DOMA, however, does not go that far. It does not prohibit States from legalizing same-sex marriage. Rather, it refuses to defer to a State's definition of marriage, insofar as it embraces same-sex marriage, for the purpose of determining eligibility for federal benefits. DOMA therefore poses an interesting puzzle. The federal government is under no obligation to provide special benefits to married couples, but if it chooses to do so can it discriminate against some marriages and not others"? This question implicates the constitutional guarantee of "equal protection of the laws."
For example, the government need not provide any health benefits to its employees, but if it chooses to do so it cannot constitutionally deny those benefits to particular employees because they are black, or women, or Mormon, or of Irish ancestry. The greater power - not to provide benefits at all - does not necessarily include the lesser power - to provide benefits only to some employees, but not others. This is at the very heart of the constitutional guarantee of equality.
Of course, differential treatment of different people is not always unconstitutional. If it was, then legislation would be pretty much impossible. For example, although the government cannot deny health benefits to employees because they are black or Mormon, it presumably can deny such benefits to employees who work only part-time.
In giving meaning to the constitutional guarantee of equality, the Supreme Court has focued on three types of situations. First, a law may discriminate against a group that, like blacks and women, has historically been discriminated against on the basis of a more or less immutable characteristic. Second, a law may discriminate between individuals with respect to a fundamental interest, such as the right to vote or the right to procreate. In these first two situations, the Court generally applies a very demanding standard of justification in deciding whether the inequality is constitutional.
In Gill, the court might have invoked either or both of these arguments, for sexual orientation is arguably analogous to race and gender, and marriage is arguably a fundamental interest. Judge Tauro, however, found it unnecessary to address those questions.
Instead, he analyzed DOMA as if it fell into the third situation, which consists of laws that neither implicate a fundamental interest nor discriminate against a group that is analogous to blacks and women. In this third situation, the Supreme Court generally finds a law constitutional if it rationally furthers a legitimate government interest. This would be the case, for example, if the government denied health benefits to part-time employees.
In Gill, Judge Tauro held that DOMA's discrimination against legally-married same-sex couples failed to satisfy even this more deferential standard. In enacting Section 3, members of Congress argued that the denial of equal benefits to same-sex couples who are legally-married under state law encourages "responsible procreation," promotes "heterosexual marriage," and preserves "morality." But whatever one thinks of these interests when offered in defense of a State's decision not to recognize same-sex marriage, they carry much less weight when advanced by Congress to justify discrimination against couples who are already legally married. And this is especially true in a realm in which Congress traditionally has no business meddling in the first place.
Moreover, the Supreme Court has long recognized that the government can never lawfully treat one group of people worse than others because the majority deems that group "immoral," "depraved," unworthy, or sinful according to "God's principles." Such animus is not a constitutionally legitimate basis for government action. Yet this seems to be precisely what motivated Section 3 of DOMA.
Indeed, if we acknowledge, as we must, that Congress had never before second-guessed a state's definition of marriage, and that the interests said to justify Section 3 have traditionally been understood to be within the exclusive domain of the States, it is difficult not to wonder what was really going on in Congress when it enacted DOMA.
After all, if Congress was truly serious about its purported justifications for DOMA, then it would have re-defined "marriage" to exclude other "depraved" or "immoral" unions. For example, it might have held that convicted mass murderers, child molesters, rapists, and adulterers cannot "marry" for purposes of receiving marriage benefits under federal law. But Congress apparently saw no reason to second-guess the states in their decisions to allow such persons to marry. It was only on the issue of sexual orientation that Congress saw fit to intervene.
In such circumstances, it is hard not to conclude that Section 3 of DOMA was designed, not to promote a constitutionally legitimate federal interest, but to enforce a distinctive animus against homosexuals. And it was precisely for this reason that Judge Tauro, following two major Supreme Court precedents invalidating other laws that discriminated on the basis of sexual orientation, rightly declared this congressional travesty unconstitutional.
Loving v. Virgina in 1967 invalidated state laws that prohibited interracial marriages.
The Edmunds-Tucker Act outlawed polygamy. The law was specifically designed to force Mormons to accept a soley monogamous definition of marriage by prohibiting women in the Utah territory from voting and penalizing them if they refused to testify in polygamy trials.
Also, Utah and other western states were forced to write bans on polygamy in their state constitutions before the federal government would recognize their applications for statehood, effectively enforcing a federal definition of marriage as monogamous.
Now, I personally don't believe that the federal government defining marriage is a bad thing, but to deny that it ever happened before DOMA wrong.
I will never understand why anyone would waste 5 seconds of their life rallying against something that supposedly has NOTHING to do with them.
It suggests either too much unemployed Christian free time, or a REALLY big closet door, or a likely combination of both.
If they get to stand up for their convictions, so does everyone else.
I jest, but seriously :|
If Congress, in the 1990s, hadn't decided to give a nudge-and-wink pass to same-sex marriage, the marriage would have to be recognized. States that don't allow first cousins to marry, or have varying ags of consent, are subject to Constitutional standards of giving full faith and credit to a marriage contract; same-sex marriage doesn't apply because our Government caved in to demands to use religious standards for a civil contract.
"Constitution!? We don't need no stinkin' Constitution!" ({"Well, maybe the Second Amendment....")
It's funny how people act like procreation is some arbitrary standard of marriage, when really, re-defining marriage just for this elusive idea of equality is fairly arbitrary, too. So are reasons stemming from love and romantic fulfillment.
For me, I am intellectually able to understand the people who are opposed to same-sex marriage, even though I mistrust their homophobia and explicitly antigay tone. They have a legitimate point insofar as marriage is an institution in which one household is able to transfer a piece of property to another household: a man gives his daughter to another man as a consort and a reproductive chattel. However, as our views of male-female relations changed, the law has begun to see the piece of property as a human being -- as it should, women being abundantly human, I think we all agree now, outside of shariah law. So while marriage is viewed by most of us as a joining together of equals, it has its roots in a specifically gendered arrangement. Slowly, most of us are seeing past that, but hey, that's why I push for domestic partnership legislation everywhere, so that antigay people can't make arguments based upon "what marriage has always been."
I loved the suggestion that by not recognizing homosexual marriage the nation or state "encourages responsible procreation". How so? Is it by forcing homosexuals into sham marriages? Is it by stopping homosexuals from practicing irresponsible procreating after they are recognized as a married couple?
Further, DOMA's intend was to promote "heterosexual marriage". How does it do this? By making it exclusive and thus much to be desired? Is there some dynamic pull toward homosexual marriage on the part of heterosexuals that must be fought by not recognizing it legally? Are the rights afforded to married couples considered so attractive that by making them available only to mixed sex couples they can entice the homosexual away from the one that they love in order to cash in? If so, is the marriage of a male homosexual to a female heterosexual or vice versa still considered a heterosexual marriage?
In fact, this term “heterosexual marriage” needs to be explored further. Does anybody actually check on the sexual orientation of both parties of each marriage to determine that they are indeed heterosexual or does the state look the other way when a homosexual just pretends and mimics them?
Finally DOMA "preserves morality"? Only if morality does not include a life free from bigotry, prejudice, homophobia, and hateful disdain for loving relationships.
Just like those antiquated laws that made interracial marriage illegal.
Maybe that is because the reason for marriage was to create legitimate heirs to property, including that of the church. Only a woman can create the heir, and when she couldn't it was often "off with her head."
Some institution.
We don't have such a situation regarding title to property today today and the subject of the article was THIS country, and not "most places."
Also, I know of no region that embraced interracial marriage in deep history, at least not at any time when marriages were officially recognized which took place around 1300 I believe. Lastly, same-sex marriages did crop up, rarely but at times in various tribal and eastern cultures.
And, same-sex relationships were honored in the ancient western civilizations. Roman Emperor Hadrian was much in love with a young man named Antinous, for whom he named the city of Antiopolis. A pair of male lovers are hailed as heroes who ended the age of tyrant rulers of ancient Greece and bringing about the democratic principles on which our own country is based.
At that time, marriage involved men buying women as tools for making babies. Since men could not be owned in this way, a same-sex marriage made no sense. As the social mores and meaning of marriage have changed over time to become a partnership of support, as well as families expanding to take on various forms, same-sex marriage makes sense now.
I especially liked the angle of the second-last paragraph. Even if you give in to the illogical idea that denying gay people marriage promotes "normalcy" and morality, this is no excuse to deny benefits to people who ARE already married.
This is what the "make all civil marriage called civil unions, and let churches call it 'marriage'" crowd don't get: some churches DO marry gay people! So even if you make marriage a 'sacred' word you still get married gay people.
The judge recognized in DOMA, what the judge will surely find in the Prop 8 Perry vs. Schwartzenegger trial: when it comes to logical, coherent arguments against equality, the "prtect-marriage" people have nothing. Not a single argument. Nada. Zip. Bupkis.
Also, when the Utah territory applied for statehood, the federal government forced them to write a ban on polygamy into their constition. Effectively this meant that any territory that did not agree with the federal definition of marriage couldn't even become a state. In other words, the federal government was defining marriage a certain way and enforcing that definition by denying statehood to territories that would have otherwise qualified for it. Other Western Territories were also forced to insert bans on polygamy in their state constitutions before being granted statehood. You can look it up on wikipedia under "Utah."
In 1996, however, Congress suddenly jettisoned this deeply-rooted tradition and attempted to interpose a new federal definition of marriage."
This statement is not entirely true. The federal government outlawed polygamy in 1890 with the Edmonds Tucker Act (I think that's what it was called).