DOMA, Prop 8 and Bruce Majors’ guide to the arguments for and against marriage equality

by CynthiaYockey on June 26, 2013

With its decisions announced today striking down section 3 of the Defense of Marriage Act (DOMA) and its two-fer decision that effectively struck down Prop 8 because the proponents in the appeal did not have standing to object to the district court’s 2010 ruling against Prop 8, the Supreme Court today declared that lesbians and gays are almost 30 percent human and endowed by their Creator with semi-alienable rights, the exact alienability of which they will decide in the future.

The good news for conservatives in the DOMA decision is that it just made gays and lesbians a gettable constituency for opposing death taxes — the federal ones, that is, and those in the 13 states plus the District of Columbia that allow marriage equality. That’s because the lawsuit was brought by Edie Windsor over the $368,000 federal estate taxes she had to pay after the death of her wife, thanks to DOMA, which DOMA-approved widows and widowers do not owe.

I’m calling the Prop 8 decision a two-fer because it let stand the district court’s ruling against Prop 8 (read Judge Vaughn Walker’s decision here, it’s very entertaining) but also as a standing ruling — a decision on who is allowed to challenge a lower court ruling — it was a decisive smackdown that will discourage others from this tactic for a good while.

Regarding Prop 8 and standing, Amy Howe of SCOTUSblog has a great explanation (read the whole thing for a plain English explanation of both the DOMA and Prop 8 decisions):

For a lawsuit to proceed in federal court, both sides must have (among other things) “standing” – a legal term for a real and specific injury that can be cured by a court decision in your favor. In this case, the two same-sex couples won in the federal trial court, and the state officials who would have otherwise enforced the law didn’t appeal that decision because they agreed that Prop 8 was unconstitutional. Only the sponsors of the initiative wanted to appeal – but the district court hadn’t ordered them to do (or not to do) anything, so they “had no ‘direct stake’ in the outcome of their appeal.” Simply disliking the law, the Court explained, is not enough to create “standing.” Nor does California law justify allowing the sponsors to participate in the case: California election laws don’t give them a special role in enforcing Proposition 8, and a ruling by the California Supreme Court that state law allowed the sponsors to appear in court on behalf of the state doesn’t help them here. The Supreme Court, it explained, “ha[s] never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to.” Thus, it continued, it “decline[d] to do so for the first time here.”

Soon after the Prop 8 decision was announced, California Governor Jerry Brown ordered all the state’s court clerks to issue marriage licenses to same-sex couples as soon as the Ninth Circuit lifts its stay on the district court’s ruling that Prop 8 is unconstitutional.

By striking down section 3 of DOMA, which defined marriage for federal purposes as being between a man and a woman, the Supreme Court gave same-sex couples married in states and countries that legally allow same-sex marriages access to the 1,138 and counting federal rights and privileges accorded to married couples. However, the decision did not address section 2 of DOMA, which was designed to thwart same-sex couples marrying in states that permit it and then having equality under the Full Faith and Credit clause of the Constitution everywhere else. So legally married lesbian and gay couples only have equality in 13 states and the District of Columbia and must cobble together assorted contracts, wills and powers-of-attorney to have anything remotely like the protections straight married couples have in all the other states.

Over at DoubleThink Online, dear gay libertarian Bruce Majors has the best summary I’ve ever read of the major arguments for and against marriage equality. I’m very honored that he writes I am the first to make one of them (read the whole thing):

But my favorite argument in the debate, and one of the newer ones, was elaborated by blogger Cynthia Yockey (A Conservative Lesbian) just a couple of years ago. Ms. Yockey notes that some churches (synagogues, etc.), like the gay oriented Protestant Metropolitan Community Churches, perform gay marriage. So if the government defines a church sacrament, marriage, to mean only one set of churches (and their sacraments) are recognized in the law, and other churches and their sacraments are not, the government has established a church (or set of churches) as approved State churches. This is a violation of the First Amendment. Ms. Yockey concludes that gay marriage must be legally recognized because of the First Amendment clause supporting freedom of religion and prohibiting the establishment of a state church.

While I wholly agree with Ms. Yockey, and take delight both in her original argument and in the fact that I am friends with someone who has produced an original argument, I also would like to emphasize my corollary to her argument: traditional marriage (at least state establishment of traditional marriage) also violates the First Amendment.

However, I must remind dear Bruce that the government does not establish religion by regulating the civil rights and responsibilities associated with marriage — 1,138 at the federal level and about 400-500 for each state and D.C., so over 21,000 altogether. Government regulation of the civil rights associated with marriage is the only thing that assures freedom of religion, another argument I am the first to make. When the government controls the civil rights associated with marriage, it ensures your right to change religions, or have no religion and still get married.

I’m also the first person to point out that the anti-gay religions funding and driving the opposition to marriage equality are after a much bigger prize than denying equality to lesbians and gays. To wit, the anti-gay churches have as their ultimate goal grabbing from government ALL the powers over married couples, both civil and religious, in order to gain virtually absolute control over their followers. For example, under the Catholic definition of marriage, Catholics cannot divorce. However, thanks to the government’s control of the civil rights of marriage, which levels the playing field regarding all religions, Catholics CAN divorce AND re-marry, and their church only gets to deny/stigmatize their subsequent marriage(s) but not preclude them.

The idea for this power grab must have come from the Mormon Church, which has three definitions of marriage (civil, celestial and plural). The Mormon celestial marriage can only occur between two Mormons with temple recommends, which are only accorded to Mormons whose church taxes (tithes) are paid up and who are obedient to every command and whim of the church hierarchy. The purported benefits of the celestial marriage hold great sway in the minds of Mormons. In contrast, what Mormons call a civil marriage is regarded as spiritually dead and is highly stigmatized. It is a second-class marriage. Likewise, the proposition that if gays are accorded marriage equality, they should only be allowed civil unions, which they cannot legally call “marriage,” is a deliberate effort to degrade same-sex marriages as spiritually dead, even though there are religions that celebrate same-sex marriages–the Metropolitan Community Church and both reform and conservative Judaism. (By the way, the Vedic literature of Hinduism holds that gays and lesbians are indeed born that way — see Parashara on Jyotish — and provides support for the belief that if you are born gay and try to be straight, you have committed the worst possible sin of falling off the path of your individual dharma.)

Returning to the benefits of the Court’s decision striking down section 3 of DOMA, same-sex married couples in our military and diplomatic corps need their marriages to be defined by the federal government to have the same rights accorded to straight married couples, such as death notice rights for spouses of soldiers, the right to military housing, the right to diplomatic housing and more. The Court’s decision should clear the way for this.

Follow conservativelez on Twitter

Comments on this entry are closed.

Previous post:

Next post: