June 28, 2013

More on the (Partial) Demise of DOMA

There was much celebration Wednesday, when the Supreme Court struck down the federal government’s denial of marital benefits to validly married same-sex couples. Unfortunately, Section 2 of the Defense of Marriage Act (DOMA) was not directly at issue before the court and still stands. That section absolves states from recognizing same-sex marriages performed in other states, a provision that might be construed as conflicting with the Full Faith and Credit Clause (Article IV, Section 1) of the Constitution. Section 2 can lead to a host of strange anomalies, as I suggested in an earlier post.

Almost certainly, at some future time, being able to marry the person of one’s choice, irrespective of sex, will be recognized as a constitutional right. Although the Supreme Court could have used the DOMA case to make that determination in 2013, the case was not the ideal vehicle to support such a finding, and this particular court is probably not philosophically inclined to make it anyway, however compelling the logic. It is difficult to see a substantial distinction between laws against same-sex marriage and laws against interracial marriage. Alas, same-sex couples must continue to wait for their Loving v. Virginia (the case in which the Supreme Court struck down all anti-miscegenation statutes in a unanimous 1967 decision).

Conservatives are fond of asserting that marriage is an important pillar of society. If that is true, it is important to strengthen marriage by eliminating the uncertainties introduced by Section 2 of DOMA and by encouraging more marriages by establishing a constitutional right to marry whom ever one likes. Those same conservatives, of course, do not recognize same-sex unions as real marriage and would therefore reject my assertion. The reality, however, is that homosexual and heterosexual marriages function in society in virtually identical ways. If one is beneficial to society, then so is the other.

Conservative opposition to same-sex marriage is, in almost all cases, based either on naked prejudice or on a religious view that sees marriage as necessarily between a man and a woman. As sexual minorities become more conspicuous in society and are known personally by more and more heterosexuals, prejudice, as a factor in opposing marriage equality, is diminishing and will continue to do so. It will be difficult to convince conservative Christians who believe that marriage, as we know it, was established by God in its only acceptable form in the Garden of Eden. (But where did all those people in the Bible come from if there was no incest in those early days?)

Progressives should argue that marriage is a social and legal construct that, for some people, has religious implications. It is not a religious state that Christians impose on society, including non-Christians and Christians who hold a different view of marriage. The fundamentalist Christian view of marriage becomes less compelling as a reason to oppose same-sex marriage when the distinction between civil and religious marriage is understood. (It is unfortunate that the two ever became entangled. Within The Episcopal Church there has been serious discussion of having clergy get out of the business of creating a civil marriage and having them confine their duties to blessing people who have already been married in the eyes of the state.) This strategy may not work on Christians who assert, improbably, that the United States of America was founded as a “Christian nation.”

On a vaguely related topic, NPR asked the question “Is There Bias in Media’s Coverage of Gay Marriage Fight?” The story suggested that there might be, as there seem to be more stories about proponents of gay marriage than about opponents. A factor not mentioned by NPR is the fact that homosexual proponents of same-sex marriage have their lives and fortunes at stake in the fight. Opponents merely seek to limit the freedom of others and, despite their protestations, will suffer no substantive loss if their position loses. This distinction would surely justify greater coverage of those celebrating the Supreme Court opinions Wednesday than those dismayed by them.

A real and destructive media bias—one perhaps more a product of ignorance than prejudice—is the use of conservative Christians and Christian organizations to represent the religious view of same-sex marriage. In fact, there is no single religious view of same-sex marriage. From media coverage, I have no idea what Jews or Muslims or Sikhs think of the matter. I know that there is a liberal Christian view, but, from most media coverage, it would be hard even to discover that there are such people as liberal Christians.

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