Saturday, June 29, 2013

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.



  1. I've blogged on this before. The state has an interest in the contractual side of marriage, whether it be for procreation or for the protection of the partners. That is why divorce law is important, along with law spelling out the fate of any offspring in such an event.

    Note that I do not consider the sex of the partners. The only problem I have with the whole issue is calling it marriage. This is a deliberate attempt to discredit religion. Marriage is a religious institution. What the state is involved in is the contractual side and it creates rules on sharing, inheritance, splitting up, etc.

    The problem is that marriage is one of those areas where the state and religion are conflated, marriage being first and then adopted by the governments when we were primarily a religious nation.

    Please note that in some states, they defined marriage as between a man and a woman but also allowed civil unions. This is my preferred approach. Let people go down to the courthouse and register their civil union then go to the particular party they want--secularists to a big reception, religionists to a big wedding.

    Actually I was told by my pastor that Martin Luther was not big on church weddings. He didn't consider them essential to the faith. He was more than happy to let the civil authorities be in charge here.

    Essentially quit calling it marriage unless some minister does it, and without any state sanction. In other words there can be marriages with no legal binding, and civil unions without marriage.

    You want separation of church and state, then separate them, properly.

  2. The less the state is involved in our personal lives the better.

    Next up, polygamists. And why shouldn't I be able to marry my cousin?

  3. John,

    I'm not sure where you're headed with your comment. On the one hand, I'm guessing that you're satisfied with less state involvement, hence the first half of your comment. On the other hand... in the second half of your comment, you seem to be making (the beginning of) a slippery-slope argument about the erosion of the institution of marriage. But why?

    We'll note, first, that slippery-slope arguments aren't logically valid because they imply the necessity/inevitability of a chain of causation that isn't really necessary/inevitable. If a federal law defining marriage were put on the books, it could define marriage simply as between/among any number of biologically unrelated consenting adults, thus allowing for traditional one-on-one marriages, "circle" marriages, polygamy, or whatever. No marrying cousins, sisters, children, or goats. That should stop any cultural slippage or erosion.

    Polygamy and "circle" marriages don't oppress me in any way; what people do with their private lives is up to them, as far as I'm concerned.


    You bring up a topic that I decided not to address in my post, but which is a valid (and meaty) point of discussion. I'm not talking so much about what the label "marriage" should be applied to, but about the need to peel apart the institution's conflated elements, i.e., the secular/civil aspect and the religious/ceremonial aspect.

    Your opinion strikes me as being in line with right-leaning Reverend Donald Sensing's. He, too, wishes for a de-conflation of these dimensions of marriage, and thinks that a lot of the discussion of same-sex marriage has been derailed by the muddling of the concept of marriage itself.

    I hadn't encountered this sort of thinking when I first began discussing/debating same-sex marriage on this blog years ago, but your and Sensing's argument, once I heard it, gave me pause and made me reconsider my own position.

    If I had written a longer blog post, I'd have addressed exactly this topic. My own position is at least somewhat in agreement with the Keezer-Sensing line, in that I believe every individual church, temple, etc. has the right to consent or decline to perform a wedding ceremony. If a gay or lesbian couple approaches a church with the hope of being married there, and if that church says "no," the couple really has no grounds to kick and scream about it: they should simply find a more amenable house of worship.

    I've talked with my gay relative (mentioned in the post) about my opinion, and he actually agrees with me, too. He thinks it'd be unfair to demand (or, more extremely, to legislate) that all churches consent to marry gay and lesbian couples. At issue is the free exercise of conscience: if marriage is a religious issue (for most of us, anyway), then conscience obviously must play a role. A minister should have the freedom to say "no" to any couple, gay or straight, for reasons of faith.

    France already does what you're suggesting. When I was a witness at my French "brother's" wedding in Nantes, we had two ceremonies: a civil one—which involved a lot of document-signing and applause—and a religious one—which involved one bit of witness-book signing, some organ music, and lots of solemn joy. This separation of the religious and the civil struck me as right and proper.

    So I don't think my own position is all that foreign to yours, although I suppose we could quibble about the applicability of the word "marriage" to same-sex unions. I completely agree that a conceptual conflation has happened, and that that conflation has obfuscated clear and civil public discourse about the issues. I further agree that the state should keep its damn hands out of church matters.

  4. I have worked at numerous weddings at churches that have performed same-sex weddings. The workers in these religious institutions have had no problem calling these unions "same-sex marriages." How is using the word "marriage" derogatory to religion as a whole when there are many religious institutions that refer to these unions as "same-sex marriages"? As someone who has worked at hundreds of weddings (straight and gay), the majority of gay weddings I've worked at have been officiated by a some sort of religious official.

  5. Why does the word marriage matter so much anyway, especially if it has absolutely no effect to your own religion or your own marriage? Isn't it even more offensive to a Christian that when a Hindu person refers to "God" they are not referring to even the same concept as a Christian? Should the government be involved in evaluating exactly how religious institutions should define concepts? Should the government have a template and glossary of terms? If a religious institution wants to call a same-sex union a "marriage", why should the government tell that religious institution that they cannot use that terminology?

  6. I'm definitely on board with the state staying entirely out of the marriage business. And that includes tax breaks and any other government benefits/inducements.

    I was not making a slippery slope argument at all. The logic of the supremes applies to polygamy which is a good thing. And since the state allows a woman to abort I don't know what rationale could be used to justify criminalizing marriage to a blood relative. Why should the state tell me who I can or cannot love?

    I'd like to see this court ruling as one step closer to a libertarian world. But alas, in other arenas the gov't is telling me how much soft drink I can consume, compelling me to buy health insurance, and monitoring my phone calls. And so it goes.

  7. Sean/Maqzito,

    I agree. Buddhists call this problem "attachment to name and form," when people can't let go of a specific notion of how a word should be defined. ("Grilled cheese!" Ha ha.)

    Reality is constantly evolving out from under our definitions, so it seems only appropriate to me to redefine words now and again. In the case of gay marriage, a lot of conservatives are doing their rhetorical damnedest to preserve a "traditional" meaning for the term, but as Mr. Sulu pointed out in his essay, we've already redefined "marriage" away from cruel notions like selling your daughter off as property. Why not continue the trend toward a more enlightened notion of marriage?

  8. John,

    re: slippery-slope argument

    I stand corrected.

    re: government meddling

    No argument here. The government really needs to stay the hell out of most aspects of our personal lives. Even as it creeps toward a more libertarian paradigm in some matters, it becomes ever more totalitarian in others. And all because it's supposedly "for your own good."

  9. If you are not free to choose wrongly and irresponsibly, you are not free at all. – Jacob Hornberger (1995)

  10. I agree that the government should be out of the marriage business altogether. I personally find polygamy strange and unpleasant for many reasons, but who cares? If I find polygamy distasteful, then I won't enter into a plural marriage. Done.

    I also wanted to add that the whole idea of having two separate terms (marriage/civil union) for a couple is just way too "separate but equal" for me to get behind. This country (as many others) has a history of disrespecting the humanity of groups and holding people under its boot and then acting so confused as to why there are domestic/foreign societal problems. How about we do what we can to prevent as many of these issues as we can by not oppressing or disrespecting people to begin with?

  11. It's also worth noting that state legislation is not really what prevents us from marrying and/or screwing our cousins. This is because, as I never tire of pointing out, 'legislation' is not the same thing as 'law:'

    "Any society which condoned murder (if only by failing to punish it) would have quickly wiped itself out. Fortunately, the majority of humans appear to have evolved not only a sense that murder is wrong, but also an inability to even contemplate the act, such that the people who don't want to commit murder today would be unlikely to commit it tomorrow even if official prohibitions of murder were eliminated.

    "The same appears to hold true for incest and, to a lesser extent, bestiality. Around the world, and throughout history, human society has a long history of taboos against sexual relations between close relatives and between humans and animals. On incest, the revulsion toward the idea of brother-sister mates appears to run deeper than even religious belief and likely rests, first, on an innate (i.e. evolved) understanding that such sexual paring leads to no good where one's offspring are concerned and, second, on a built-in mechanism that inspires revulsion at the very thought. True, at various points in history, certain royalty have sought to maintain their bloodline by hooking up with their kinfolk, but this only begs the question: 'how are those regimes, on average, doing now'"


  12. Interesting points, Aaron, and that was an interesting blog post, too.

  13. @ Bill, way back at the start...

    "Marriage is a religious institution."

    Bullshit. Bull. Shit. Religion has usurped marriage and taken credit for marriage. Marriage is a civil institution and always has been. This is why marriages performed as a civil ceremony are legally recognized as marriages and always have been.

    If there's discredit to be offered on this topic to religion, it's religion's own fault for taking the credit for something it genuinely has nothing to do with. If religious marriage ceremonies were outlawed tomorrow, marriage would still exist and would not change as an institution.

    That said, should churches be forced to perform same-sex couple weddings? Of course not--nor should a Catholic church be forced to (for example) perform a Jewish ceremony. This argument, one I've heard so often I can't believe there are people who haven't legitimately had it refuted, is completely specious. No one that I know of has ever suggested that churches will be forced into performing these ceremonies. Claiming that it will/could happen or that same-sex marriage advocates have that in their agenda is straw manning.

    Again, this goes back to the claim that marriage is a religious institution. It isn't. Sorry.

  14. Let's keep the tone civil, gentlemen. This is a subject that arouses passions; we'd be wise to remain circumspect.



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