DOMA, historical irony, and ramifications

As soon as I heard about the US Supreme Court's DOMA decision, I tweeted the following:

Historical irony: a right-leaning Supreme Court has declared DOMA—signed into law by left-leaning Bill Clinton—unconstitutional.

Some will immediately argue that the situation wasn't that simple, so let's take a moment to unpack what really happened with DOMA.

DOMA stands for the "Defense of Marriage Act." It is a 1996 piece of legislation that was signed into law by then-President Bill Clinton, an ostensibly liberal Democrat. It defined "marriage" as a union between one man and one woman, and barred same-sex couples from receiving a raft of federal benefits.

While it tickles me that liberal Bill Clinton signed DOMA into law, in all fairness—and in the interest of full and true disclosure—it should be noted that DOMA was initially introduced by congressional Republicans, who pushed hard for its passage. At the same time, and also in the interest of fairness, we should observe that DOMA passed both houses of Congress by a significant margin (85-14 in the Senate, 342-67 in the House of Representatives), indicating that the act had wide bipartisan support. Such was the political Zeitgeist in 1996.

Bill Clinton expressed regrets at signing DOMA into law, and began to agitate for its repeal. He had, in fact, been against DOMA from its inception, which raises the question of why he bothered to sign the act into law in the first place. The cynical answer also happens to be the true one: Clinton was in an election year, and didn't wish to jeopardize his chances at reelection. If nothing else, the man was a consummate pragmatist. He also happened to be personally against gay marriage.

So it's true that my tweet oversimplified matters, but I think I was basically on the right track. The fact is that the current makeup of the Supreme Court still skews conservative, so it was a conservative court that, just a few days ago, declared Section 3 of DOMA to be unconstitutional. It's also a fact that Bill Clinton embodied the paradox of being a political liberal who was also personally against gay marriage.

Section 3 of DOMA says:

Section 3. Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

The Supreme Court's decision is essentially a conservative one in that it disempowers the government from defining marriage. This is, I think, conservatism at its best: letting people go about their private lives and loves with a minimum of moralistic (and coercive) intrusion. I see the striking-down of DOMA's Section 3 as a major step in the right direction, and longtime readers of this blog know that I've been a staunch supporter of same-sex marriage for years. A close relative of mine is gay, and I'd like for him to live in a country where he can be as free as anyone else to marry whom he chooses, with no negative repercussions or legal constraints in terms of federal benefits.

George Takei, a.k.a. Mr. Sulu from the classic Star Trek TV series and movies, has written an article providing his reflections on the recent DOMA decision. His basic thesis is that opposition to gay marriage, for all the supposedly rational justifications on which such opposition is based, really comes down to an "ick" factor—a gut-level distaste at the thought of grown men (and women) kissing each other. Takei writes:

Whenever one group discriminates against another — keeping its members out of a club, a public facility or an institution — it often boils down to a visceral, negative response to something unfamiliar. I call this the "ick." Indeed, the "ick" is often at the base of the politics of exclusion. Just this March, for example, a young woman at an anti-same-sex-marriage rally in Washington was asked to write down, in her own words, why she was there. Her answer: “I can't see myself being with a woman. Eww.”

Frankly, as a gay man, I can't see myself being with one, either. But it's usually not gays who write the laws. If this woman were in Congress, her personal discomfort might infect her thinking—and her lawmaking. Gays kissing? Ick.

[...]

To help justify the "ick," many, like that judge in Loving [Loving v. Virginia, 1967], turn to the Bible, perhaps because science doesn’t lead to the conclusion that homosexuality is unnatural. As one popular saying goes, homosexuality is found in more than 400 species, but homophobia in only one. But references to the Bible or other religious texts are not a solid footing on which to base notions of traditional marriage. Concerns about the separation of church and state aside, traditional marriage has never been what its homophobic proponents believe. As author Ken O’Neill reminds us, the fact that you can’t sell your daughter for three goats and a cow means we’ve already redefined marriage.

Not all people campaigning against gay marriage care to see themselves as homophobic, although I admit it's difficult for me to understand how advocating for continued marriage inequality is not homophobic. These people do attempt "reasoned" objections to the legal affirmation of gay marriage, but I can't say that I've ever encountered an anti-gay-marriage argument I could describe as either successful or convincing.

In a post against gay marriage titled "The Infertility Argument for Same-Sex Marriage," Dr. Vallicella gives us the old college try. In this post, Vallicella attempts to show why, if marriage is fundamentally about procreation, there is a disanalogy between (1) infertile heterosexual couples wanting marriage and (2) gay or lesbian couples wanting marriage. To wit:

Suppose two [heterosexual] 70-year-olds decide to marry. They can do so, and their marriage will be recognized as valid under the law. And this despite the fact that such elderly couples cannot procreate. But in many places the law does not recognize marriage between same-sex couples who also, obviously, cannot procreate. What is the difference between the opposite-sex and same-sex cases? What is the difference that justifies a difference in legal recognition?

[...]

Here is a relevant difference. It is biologically impossible that homosexual unions produce offspring. It is biologically possible, and indeed biologically likely, that heterosexual unions produce offspring. That is a very deep difference grounded in a biological fact and not in the law or in anything conventional. This is the underlying fact that both justifies the state's interest in and regulation of marriage, and justifies the state's restriction of marriage to opposite-sex couples.

[...]

[Concerning] the justification of the state's involvement in marriage in the first place[:] It is obvious, I hope, that the state ought not be involved in every form of human association. State involvement in any particular type of human association must therefore be justified. We want as much government as we need, but no more. The state is coercive by its very nature, as it must be if it is to be able to enforce its mandates and exercise its legitimate functions, and is therefore at odds with the liberty and autonomy of citizens. It is not obvious that the government should be in the marriage business at all. The burden is on the state to justify its intervention and regulation.

But there is a reason for the state to be involved. The state has a legitimate interest in its own perpetuation and maintenance via the production of children, their socializing, their protection, and their transformation into productive citizens who will contribute to the common good. (My use of 'the state' needn't involve an illict hypostatization.) It is this interest that justifies the state's recognition and regulation of marriage as a union of exactly one man and exactly one woman.

I have just specified a reason for state involvement in marriage. But this justification is absent in the case of same-sex couples since they are not and cannot be productive of children. So here we have a reason why the state ought not recognize same-sex marriage.

[...]

The right place to start this debate is with the logically prior question: What justifies the state's involvement in marriage? The only good answer is that state involvement is justified because of the state's interest in its own perpetuation via the production of children and their development into productive citizens. (There is also, secondarily, the protection of those upon whom the burden of procreation mainly falls, women.) It is the possibility of procreation that justifies the states' recognition and regulation of marriage. But there is no possibility of procreation in same-sex unions. Therefore, same-sex unions do not deserve to be recognized by the state as marriage. This is not to oppose civil unions that make possible the transfer of social security benefits, etc.

Vallicella's argument is that the state has an interest in continuing its own existence, which means the state has a legitimate motivation for legislating what sort of marriage is legal. Unfortunately, this logic opens the door to all sorts of silly arguments. If the state were to make laws with an eye to its own perpetuation, then...

• it would have to mandate scientific research into longevity, since it's in the state's interest to have longer-lived citizens. Any lab not performing longevity research would be punished.
• it would have to ban all condoms and other birth-control measures, since those measures are specifically designed to control population size, and are thus a threat to the state.
• it would have to open the borders wide to immigration, since more citizens = more voters = more state, for longer.
• it would aggressively promote "circle" or "communal" marriages that would supply a large number of offspring and, it can be hoped, plenty of hybrid vigor, ensuring productive citizens.
• it would have to outlaw death. Every individual death is a blow against the state, after all.

Given the absurdum to which the above reductio leads, I think it's safe to say that "the state has a vested interest in its own perpetuation" is not a legitimate reason to discriminate against same-sex couples seeking marriage.

Vallicella might reply to my reductio by adding Ptolemaic epicycles to his argument; he could refine and refine what he means as we volley back and forth, but in the end, his argument will eventually collapse under the weight of all those epicycles. The Ptolemaic model of the solar system failed for just that reason: it rapidly became unworkable as the paradigm's basic structure and premises proved demonstrably false. A true understanding of the solar system required a Copernican revolution, a redefining of the notion of "solar system" that took the facts into consideration. In much the same way, the brute fact of the increasing acceptability of same-sex marriage will eventually necessitate a redefinition of the word "marriage."

Some conservatives accuse liberals of hijacking discussion by redefining terms, but it should be painfully obvious to both sides of the aisle that, in the case of marriage, a redefinition of the concept is both necessary and moral. At the most basic level, we have to recognize that gay people are people, and as such, are deserving of equal human rights, including the right to publicly, and proudly, vow lifelong love and fidelity. It's impossible for me to think of a single "rational" argument against same-sex marriage that does not violate the recognition of a same-sex couple's basic humanity.


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