My reflections and musings on the struggle to leave a Christ-shaped impression on the world of law and public policy.


Tuesday, July 2, 2013

Sorting Out the DOMA Decision

Even though my family was on vacation in Wyoming last week, I didn't escape the brouhaha over the Supreme Court's same-sex marriage decisions.  (The ecstasy and the agony of a smartphone!) Because this issue is so emotionally charged, however, I opted to wait until I was comfortably at home again--and able to read the Court opinions for myself--before entering into any discussion about them.

Having read United States v. Windsor, the decision dealing with the constitutionality of the federal Defense of Marriage Act (DOMA), here are some of my thoughts...

1.  Justice Kennedy, writing for the majority, both misunderstands and insults a widely embraced worldview (which I happen to share) when he concludes that Congress' recognition of marriage as being exclusively a  union of one man and one woman is necessarily based upon animus against homosexual individuals. 

There are myriad justifications for the decision of a majority of the nation's federal legislators (which, by the way, was ratified by a Democratic executive) to reserve special governmental benefits for a certain type of familial arrangement.  The most obvious, of course, is the deeply rooted, historically tested belief that children are most likely to thrive when raised in a stable relationship with a mother and father.

Assuming a connection between the desire to protect traditional marriage and an "animus" toward homosexual individuals or couples is simply assuming too much.  The two ideas are certainly not linked as a matter of logic.

2.  In a nation where the federal government is rapidly taking over every aspect of our lives, the Court was right to emphasize principles of federalism.  The majority's decision relied heavily on the power of States to define and regulate marriage.  It did NOT rule that homosexual couples have any constitutional right to be married, per se, but rather that the federal government had denied legally married homosexual couples the right of equal protection by refusing to recognize their state-approved union.

However strenuously I may disagree with that legal conclusion (because of its faulty premise, a questionable equal protection analysis, and the failure to recognize the federal government's right to define terms for its own programs), I wholeheartedly agree that when it comes to marriage and family, States should be taking the lead in making policy. 

It may be tempting for conservatives to think that with an issue this fundamental and this important, the federal government should have the final say.  My response to that, however, is three little words:  Roe versus Wade.

Beyond the obvious deficiencies in the logic and analysis of that fateful decision, the real tragedy of Roe v. Wade was that by constitutionalizing the issue of abortion (and by doing so in the most counterintuitive way), the Court, in a sense, withdrew it from the political process.  The Court threw the game, putting the ball on the abortion proponents' side and leaving the pro-life team to defend a precious few yards of ground with our hands tied behind our backs.

In short, I believe that the majority's decision on DOMA is significantly flawed.  But at least it leaves proponents of traditional marriage to gain what ground we can through the merits of our position, the winsomeness of our tone, and the examples we set in our own families.