In today's Times, Frank Rich asks, "
How Gay Is the Right?"
"[I]t isn't entirely progress that we now have a wider war on gay people, thinly disguised as a debate over the filibuster, cloaked in religion, and counting among its shock troops politicians as utterly bereft of moral bearings as [recently outed, vitriolically anti-gay Spokane mayor] James West."
This is what the judicial nominee battle is about to the right: A bunch of adulterers and divorcees got together to pass the Defense of Marriage Act in 1996. (Thomas, the government database, appears to be down, so
here is the text of the House bill that eventually became DOMA. I don't know whether the Senate bill was identical or whether there were changes made to this one-pager in conference committee.)
More on the Supreme Court, the sanctity of marriage, and the pursuit of equality in America below the cut.
DOMA singles out one category of people and legalizes discrimination against them. DOMA doesn't merely affirm the historically respected notion that states create their own marriage laws. It signifies one category of married people whose fundamental right to determine their own families may be denied at the discretion of the states.
A Constitutional law along these lines would simply state that the Full Faith and Credit clause of the Constitution has never applied to marriage, and still doesn't. By singling out one category of person for discrimination, the law surpasses the boundaries of the United States Constitution.
The Courts, at least since
Brown in 1954 (
*) have not looked kindly on legal arrangements that presuppose and reinforce the inferiority of one group to the majority. From Brown:
To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone...
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. (Opinion written by Chief Justice Earl Warren)
The arguments put forth by defenders of discriminatory marriage laws have little bearing on the state of marriage in America. Procreation is not a precondition for marriages, and has been stated elsewhere thousands of times, the elderly (heterosexual), the infertile (heterosexual), and those (heterosexuals) who simply don't wish to become parents may get married, while same-sex couples who may be engaged in raising children together are denied any substantial marriage equality in all but three states (Vermont, Massachusetts, and Connecticut). In all fifty states, same sex couples are denied equal consideration in federal matters such as jointly filing taxes, survivor benefits, and so forth.
In
Turner v. Safley, Justice Sandra Day O'Connor issued the majority opinion on the Missouri prison system's decision to allow inmate marriages only when approved by the Superintendent of the Prison. She wrote:
It is settled that a prison inmate "retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context.... [emphasis mine]
Convicted murderers have more Constitutionally protected rights to self-determination than I, or any other homosexual in America, have. The Court views marriage as a stabilizing influence, both for the inmate and for his or her spouse, and as such the Court recognized the inalienable nature of the right to wed.
Loving v. Virginia (1967) provides more insight into the marriage as a fundamental right:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
So back to the issue at hand: DOMA and the right's terror that a case on the merits of DOMA will go before the Supreme Court. The Defense of Marriage Act is almost certainly a violation of the 14th Amendment's guarantee of equal protection and due process ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."). For whatever reason, the right has chosen to champion a law that even they believe is unconstitutional (so much for strict constructionism) and destined to be thrown out, and to protect the adulterers' and divorcees' cherished notions of the sanctity of marriage, they have created the extremely divisive slur "activist judge" to attempt to discredit any ruling that upholds constitutional guarantees for equal protection for gay people.
The courts will eventually come to the conclusion that the repeatedly expressed desire to wed by adults engaged in lawful intimate relations cannot be rationally denied, at least in federal law (the fed does not write marriage statutes for states, of course). Those who would prefer to see these decisions reached by federal and state legislatures should begin lobbying for them to do their jobs quickly, because the current situation is untenable in the long term. The right understands this, so they fight to do away with an independent judiciary that might bar their deeply cherished bias.
I am an American. I demand that my nation live up to the founding documents that have guided us for more than two centuries. I demand equal treatment under the law for myself and the person who I can only properly call my "girlfriend" in today's legal climate. I demand that this bias be exorcised from our laws, and that the blessings of liberty and equality under the law be opened to all Americans.
Originally published at
Simianbrain.com.