SCOTUS Takes Up DOMA and Prop 8

It has been, of course, a big week at the US Supreme Court with respect to same-sex marriage.

I've been mostly following the arguments and recaps at SCOTUSblog. There are many good roundups at the site, two interesting pieces of which include commentator Lyle Denniston saying "DOMA is in trouble" and Amy Howe breaking down the Prop 8 arguments "in Plan English."

In her post, Howe suggests that the Justices may not reach the merits of the Prop 8 case at all, since Prop 8 is being defended not by the State but by the proponents of the ballot initiative. What that means is that the proponents of Prop 8 may lack "standing" to bring the case.

Back to DOMA, though, Denniston recounts how Justice Kennedy "seemed troubled" by the way that DOMA prohibits same-sex couples who are legally married in a state from receiving federal benefits of marriage and by the way that DOMA interferes with the "traditional authority" of the states to regulate marriage.

Feel free to discuss these cases, the briefs, the articles, and/or specific arguments in the comments.

I would like to end with one observation. At this blog, in the context of civility, we sometimes discuss the difference between intent and effect, and concede that an action or statement may be harmful even if that was not the intent of the person making it.

That mixed-sex relationships oftentimes result in procreation is often put forth as a civil, non-religious reason for limiting marriage to one man and one woman. Yet, my primary issue with a legal system that affords separate and unequal rights to same-sex couples and mixed-sex couples is that, pragmatically, DOMA and Prop 8 only test the gender composition of a couple, not the couple's actual procreative ability. That some states, like my own, grant the exact same state-level rights of marriage while calling the legal status by a different name, like "civil union" which is supposedly definitely not marriage, appears similarly irrational.

I realize that to those who have been involved in this conversation for years, I'm not making a new argument or saying anything that hasn't been said a million times already.  And yes, I realize that some, including the legislators who were in support of DOMA, believe that it would be "offensive" to inquire, prior to marriage, into whether a mixed-sex couple were capable of procreation. Apparently, it matters a lot when heterosexuals might be offended, as opposed to when same-sex couples might be offended!

But to me, and to many others (judging by the traction this argument gets), the overbroad nature of letting mixed-couples marry who cannot procreate together while excluding all same-sex couples from marriage for precisely that reason has an effect of suggesting that the same-sex couple sub-category of couples who cannot procreate together cannot marry because they are tainted by the purported moral inferiority of homosexuality.

At the same time, I think we would be remiss in not acknowledging the actual intent behind DOMA, as it was not as entirely benign as is sometimes claimed.

In 1996, one of the reasons that the House Committee on the Judiciary put forth for supporting DOMA was, actually, to enshrine the moral inferiority of homosexuality into law. This Committee wrote (PDF):

"Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality."

In the current context in which it is often fashionable for some opponents of same-sex marriage to be more offended when one's views are called anti-gay than to be offended about holding anti-gay beliefs, I think the incredibly problematic aspects of the legislative history of DOMA sometimes get a little bit overlooked and erased.

If one of the purported goals of DOMA was to reflect and honor a collective moral disapproval of homosexuality, that seems to be an admission that the law actually does reflect and honor a collective moral disapproval of homosexuality. Knowing that context and background, I think it's incredibly difficult for supporters of DOMA to claim, in good faith, that their support of DOMA is not, likewise, expressing a similar disapproval.

[Cross-posted: Family Scholars Blog]