Co-author of DOMA admits that marriage has always had a legal definition apart from religion

by CynthiaYockey on July 10, 2010

Dear Ed Morrissey or dear Allahpundit at Hot Air gave me a busy evening by linking in the Hot Air Headlines my post below on Hawaii Gov. Lingle’s veto of a new law that would allow civil unions for same-sex partners. (Psssst! Who can tell me what the number to the right of the headline in the Hot Air Headlines means?)

And, yes, I know the subject of same-sex marriage equality is lively because of the pair of decisions by Massachusetts Judge Joseph Tauro yesterday declaring section 3 of the Defense of Marriage Act (DOMA) invalid. Gabriel Malor of Ace of Spades HQ has the most useful summary, as well as links to the PDFs of the decisions:

A federal district court judge in Boston just released decisions in two cases: Gill v. OPM and Massachusetts v. Department of Health and Human Services.

DOMA section 3 sets the federal definition for marriage as only between a man and a woman. It similarly defines for federal purposes the meaning of the word “spouse.” DOMA section 2, which was not at issue in these lawsuits and remains undisturbed, provides that states need not recognize gay marriages from other states.

In Gill the judge held that DOMA section 3 violates equal protection principles entrenched in the Fifth Amendment right to due process [sic — note by CY: I think Gabriel intended to cite the Fourteenth Amendment, which has the Due Process and Equal Protection clauses].

In the other case, the judge held that DOMA section 3 violates the Tenth Amendment:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

Ed Morrissey at Hot Air questioned the application of the Tenth Amendment “in the case of Medicaid coverage.” Medicaid is health insurance for the extremely poor, and the disabled poor under 65, paid for by a combination of federal and state money. I think Ed might have been responding to a mistake in the CBS News story that he linked because Medicaid is not a federal benefit that heterosexual married couples can obtain without enormous hardship for reasons I explain below (boldfacing mine):

The state had argued the law denied benefits such as Medicaid to gay married couples in Massachusetts, where same-sex unions have been legal since 2004.

Tauro agreed, and said the act forces Massachusetts to discriminate against its own citizens.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid,” Tauro wrote in a ruling in a lawsuit filed by Attorney General Martha Coakley.

Ruling in a separate case filed by Gays & Lesbian Advocates & Defenders, Tauro found that DOMA violates the equal protection clause of the U.S. Constitution.

“We’ve maintained from the very beginning that there was absolutely no basis for this law treating one class of married Massachusetts couples different from everybody else and the court has recognized that,” said Gary Buseck, GLAD’s legal director.

The Justice Department argued the federal government has the right to set eligibility requirements for federal benefits — including requiring that those benefits only go to couples in marriages between a man and a woman.

The law was enacted by Congress in 1996 when it appeared Hawaii would soon legalize same-sex marriage and opponents worried that other states would be forced to recognize such marriages. The lawsuit challenges only the portion of the law that prevents the federal government from affording pension and other benefits to same-sex couples.

How ironic is it that part of DOMA is struck down the same week that Hawaii’s governor vetoed the law DOMA was created to thwart 14 years earlier?

However, let’s get back to the federal definition of marriage and how that affects the eligibility of same-sex spouses for federal benefits and programs in the five states and the District of Columbia where same-sex marriage is legal. Federal pensions are an example of such a benefit. Medicaid is not, for the simple reason that Medicaid is a preventer and destroyer of marriage because it is a means-tested program where both spouses’ incomes are counted.

Tax attorneys actually advise elderly people to divorce to protect their assets when one spouse is likely to need nursing home care within a few years, so that the community spouse — the term for the spouse who can still live in the community independently — is able to afford his or her living expenses. The alternative is that the couple must spend down their assets to provide for the care of the sick spouse to an amount set in 1974 and not adjusted for inflation since: $2500, not including their house.

My reaction to bringing up Medicaid is a tangential one that I raised a few months ago after Obamacare was passed: the  asteroid hurtling from space that is big enough to make marriage extinct in America is Obamacare’s means-tested health insurance, which will destroy marriage even faster than the Great Society’s “man in the house” rule for means-tested welfare assistance destroyed marriage for poor blacks.

OK, that’s the background for the point I originally set out to make, which is that in an essay at the National Review Online, Hadley Arkes, one of the architects of the Defense of Marriage Act, concedes a fundamental point in the discussion over whether marriage is a religious ceremony and therefore can only properly be defined by religions:

The hard fact of the matter is that marriage has been part of the very matrix of the law ever since there have been laws.

THANK YOU, Prof. Arkes! Marriage can therefore quite properly be defined by governments.

However, Prof. Arkes mounts a tautological and inadequate defense of his main point, that DOMA was about defending marriage rather than, as he quotes Judge Tauro, “for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it [Congress] disapproves.” The thing that keeps bringing people to see defining marriage to exclude same-sex couples as disadvantaging them is the long, long, long list of federal rights — 1,138 — denied to same-sex couples, plus the hundreds of rights under the laws of each state. And the thing that keeps focusing attention on the idea that this is being done simply on the basis of disapproval has to do with religion being used as the basis of the objections.

I’m also amused that Prof. Arkes set up his argument via the straw men of “activist judges” intent on, as he accuses Judge Tauro, “imposing same-sex marriage on the nation as a whole” — as if heterosexuals were going to be forced into same-sex marriages in some hellish future, the same way that lesbians and gays get forced into heterosexual marriages now and historically. The reason that there’s no judicial activism to this whatsoever is because it is the duty of the courts to protect the equality of minorities, such as lesbians and gays, especially when their equality stands little or no chance of existing under majority rule — that is why we have the judicial branch as a check on the legislative and executive branches, and even on the will of the people, as in the case of Prop. 8.

But kudoes to Prof. Arkes for once and for all establishing that marriage can be defined by governments as legitimately as by religions. Although, if we have to, lesbians and gays totally will go to the labor of establishing a new religion that has our equality as one of its fundamental tenets. So we’re good, now, either way.

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Zendo Deb July 10, 2010 at 5:00 pm

There are other issues. Even if your state recognizes civil unions, does that make you next of kin if someone is injured while traveling. (Forget about trying to figure out what would happen internationally.)

Chris July 14, 2010 at 7:15 pm

The number to the right of the headline on Hot Air is the number of comments made on that particular post.

CynthiaYockey July 14, 2010 at 10:54 pm


THANK YOU!!!!!!!


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