A Philosopher's Blog

DOMA Down

Posted in Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on June 28, 2013
Same Sex Marriage

Same Sex Marriage (Photo credit: Wikipedia)

The United States Supreme Court ruled 5-4 against an important part of DOMA (Defense of Marriage Act), specifically  the part of the law that denied benefits to same-sex married couples. The court also ruled 5-4 that the supporters of California’s Proposition 8 (that bans same-sex marriage) did not have the standing to appeal the existing ruling against the proposition. Thus, the court left intact a ruling by a lower court that the proposition is unconstitutional. The court did not, however, make any ruling about the proposition itself.

In the case of DOMA, the court ruled against Section 3, which is the section that defined marriage as being between a man and a woman. The legal basis for this ruling is that this definition is a violation of the the Constitutional right to equal protection under the law.  Justice Kennedy, who cast the decisive vote for the 5-4 ruling, noted that “the federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.” He also added that the law imposed  “a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.”

While this ruling is being lauded by advocates of same-sex marriage, it is important to note that it obviously does not make same-sex marriage legal throughout the states. However, it does certainly provide a foundation for legal arguments in favor of same-sex marriage. After all, Kennedy makes it clear that the statute disparages and injures those it targets and the same principle can, obviously, be applied to other such laws.

That said, it is important to note another key aspect of Kennedy’s claims. While he clearly notes the pernicious nature of the statute, he does so in the context of how the statute is an attack on the authority of the states which legalized same-sex marriage. As such, he is putting forth a principle with two key components. The first is focused on the personhood and dignity of the people in same-sex married couples. The second is focused on states’ rights, specifically their authority to pass laws regarding marriage.

In the case of DOMA, the two principles are in harmony: DOMA violated the legal authority of the states that had passed laws permitting same-sex marriage and this law certainly seems to have been aimed at disparaging and injuring citizens. However, there is the question of which principle should be given priority when they are in conflict. That is, would the authority of a state override the equal protection clause in this case or would the equal protection clause hold?

The ruling on Proposition 8 sheds some light on this, given that the decision apparently allows each state to set its own marriage policy. This would seem to indicate that the states have the authority to pass laws that would ban same-sex marriage. However, these laws would certainly seem to run afoul of the equal protection clause and would seem to be inconsistent with Kennedy’s reasoning in the first principle attributed to him. One way to reconcile the two would be for states to have the right to pass laws that allow same-sex marriage but lack the right to pass laws that would deny same-sex couples equal protection and rights under the law. This, obviously enough, would seem to imply that same-sex marriage should be legal in all the states. However, this discussion is rather speculative and can, no doubt, be easily countered.

As might be imagined, these rulings were not met with joy by all Americans and there is still opposition to same sex marriage. For example, Austin Nimocks, who is a lawyer with the rather ironically named Alliance Defending Freedom, said that “marriage – the union of husband and wife – will remain timeless, universal and special, particularly because children need mothers and fathers.”

Nimocks seems to be wrong on almost all counts. Marriage is rather obviously neither timeless nor universal. It could be special, but that all depends on what is meant by the term “special.” While children certainly do need parents, there is no necessary connection between children having parents and the sort of “traditional” marriage being put forth by Nimocks.

While my own view of same-sex marriage is extensively developed in  in my book For Better or Worse Reasoning, I will say a bit about the matter here.

Not surprisingly, I agree with the striking down of DOMA and agree with Kennedy’s view that the law disparages and injures citizens. I also agree that the law was a violation the authority of the states. As such, I regarded DOMA as a violation of both individual and collective rights.

I will add, however, that I think that much of our trouble with marriage stems from the fact that we have clumped together various relationships under the term “marriage” and we fail to properly consider that these relationships are quite distinct. In my book, I argue that marriage should be split into at least three categories, namely the legal marriage, the theological union (religious marriage), and the loving marriage. The concern of the state and the laws would be limited to the legal marriage, which is defined by all the various legal and economic aspects of current marriage (such as divorce, insurance, inheritance and so on). The legal marriage is just that, a legal contract, and would be open to consenting adults.

Those who value the religious aspects of marriage and see it is a matter involving God (or whatever) can have their theological unions that are handled by the appropriate religious authorities. This union would have no legal status and, as such, would allow for as much discrimination as desired. This would allow people to protect what they regard as the sanctity of marriage while also preventing them from denying other people their rights.

Those who see marriage as a matter of love would have their love unions that would also have no legal status whatsoever. They could, of course, involve personal promises and all sorts of romance. Naturally, a person could engage in all three marriages (perhaps with the same person in each case).

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  1. ajmacdonaldjr said, on June 28, 2013 at 12:31 pm

    The BIG issue you’re overlooking is this: The US Constitution died in 1803 with the SCOTUS Marbury v. Madison ruling.

    According the the US Constitution, the Courts are to follow and uphold – not reinterpret and invalidate – the laws. According to the US Constitution, the legislators are to make the laws, not the courts.

    See: THE GOOD GUYS ARE NOT COMING TO SAVE US – http://www.freemansperspective.com/good-guys-not-coming-to-save-us/

    “Those who value the religious aspects of marriage and see it is a matter involving God (or whatever) can have their theological unions that are handled by the appropriate religious authorities. This union would have no legal status and, as such, would allow for as much discrimination as desired.”

    You think those who marry in the church should not have legal standing? What kind of nonsense and reverse discrimination is this? To not grant legal standing to those who marry in the church would be “disparaging and injuring citizens” who choose this type of marriage.

    “In the case of DOMA, the court ruled against Section 3, which is the section that defined marriage as being between a man and a woman. The legal basis for this ruling is that this definition is a violation of the the Constitutional right to equal protection under the law.”

    As I have said before: this is all about a redefinition of the word “marriage” and anyone who articulates the potential, likely, and logical consequences of this “redefining moment” is not employing “the slippery slope” fallacy, but is simply following the logical, even if seemingly absurd, to some, conclusions of this redefinition. As you well know, Socrates did the same.

    Now that we are redefining the word “marriage” to mean something other than “being between a man and a woman” the door is open to “marriage” being between a man and a man, a woman and a woman, a man and two women, a woman and two men, a group of women and men, a group of men, a group of women, a man and himself, a women and herself, a man and an inanimate object, a woman and an inanimate object, a man and an animal, a woman and an animal, etc…

    Lest you think these types of marriages absurd, I suggest you look up the various and sundry types of marriages that already exist and the various and sundry types marriages peoples have already entered into, which include all of those mentioned above.

    No one, at this point, dare say these people can’t enter into whatever types of marriage they choose to enter into. Only haters and racists would dare to say they couldn’t.

    This redefinition of the word “marriage” doesn’t imply the slippery slope fallacy, as you have often asserted, it simply allows peoples who are still disenfranchised from state recognition of their chosen types of marriages to now begin working for their types of marriages to be recognized by the state and to be enfranchised.

    This is not an abstraction, but a concrete reality. For example: There are many polygamists in the US today whose marriages are not recognized by the state and these peoples are currently disenfranchised. The redefinition of the word “marriage” now allows them to begin pursuing their chosen type of marriage to be recognized by the state and for marriage enfranchisement.

    What is “marriage”? and who’s to say?

    Google: “Types of Marriage” and you will find many peoples who remain disenfranchised from marriage: peoples who want to marry more than one person, peoples who wish to marry animals, peoples who wish to marry themselves, peoples who wish to marry inanimate objects, etc… and peoples who already have done all of these…

    Types of marriages – http://en.wikipedia.org/wiki/Types_of_marriages

    Woman marries dolphin

    Sharon Tendler met Cindy 15 years ago. She said it was love at first sight. This week she finally took the plunge and proposed. The lucky “guy” plunged right back.

    In a modest ceremony at Dolphin Reef in the southern Israeli port of Eilat, Tendler, a 41-year-old British citizen, apparently became the world’s first person to “marry” a dolphin.

    http://www.theage.com.au/news/world/woman-marries-dolphin/2006/01/01/1136050339590.html

    Nadine Schweigert, North Dakota Woman, ‘Marries Herself,’ Opens Up About Self-Marriage

    A 36-year-old North Dakota woman who married herself in a commitment ceremony last March has now spoken about her self-marriage choice in an interview with Anderson Cooper.

    The marriage took place among friends and family who were encouraged to “blow kisses to the world” after she exchanged rings with her “inner groom”, My Fox Phoenix reports.

    See: http://www.huffingtonpost.com/2012/05/25/nadine-schweigert-woman-marries-herself_n_1546024.html

    Woman getting married to fairground ride

    Amy Wolfe, a US church organist who claims to have objectum sexuality, a condition that makes sufferers attracted to inanimate objects, plans to marry a magic carpet fairground ride.

    See: http://www.telegraph.co.uk/news/newstopics/howaboutthat/5972632/Woman-getting-married-to-fairground-ride.html

    Child bridegroom: Eight-year-old boy marries 61-year-old woman after ‘dead ancestors told him to tie the knot’

    An eight-year-old schoolboy has married a 61-year-old woman because the ghost of his dead ancestor told him to.

    Sanele Masilela tied the knot with Helen Shabangu, who is already married and a mother-of-five.

    The boy, from Tshwane, South Africa, said he had been told by his dead ancestors to wed and his family, fearing divine retribution, forked out for a wedding.

    Read more: http://www.dailymail.co.uk/news/article-2291324/Child-bridegroom-Eight-year-old-boy-marries-61-year-old-woman-dead-ancestors-told-tie-knot.html#ixzz2Ui6jDE7A

    Seattle woman “marries” building to protest its demolition

    A Seattle woman recently exchanged one-sided wedding vows with an abandoned warehouse building that is set to be demolished to make way for a new apartment building.

    See: http://news.yahoo.com/blogs/sideshow/seattle-woman-marries-building-protest-demolition-224250710.html

    Woman ‘married’ to Berlin Wall for 29 years

    Eija-Riitta Berliner-Mauer, 54, whose surname means Berlin Wall in German, wed the concrete structure in 1979 after being diagnosed with a condition called Objectum-Sexuality.

    See: http://www.telegraph.co.uk/news/newstopics/howaboutthat/2035996/Woman-married-to-Berlin-Wall-for-29-years.html

    Mother who marries her son, she is now 6months pregnant

    A woman and her son have done the unthinkable – they have fallen in love with one another. And now they want to marry since the mom, Betty Mbereko from Mwenezi in Masvingo, is six months pregnant and expecting her son’s child.

    See: http://primegossips.com/?p=4858

    Man marries pillow

    True love can take many forms. In this case, it has taken the form of a Korean man falling in love with, and eventually marrying, a large pillow with a picture of a woman on it.

    See: http://metro.co.uk/2010/03/09/man-marries-pillow-154906/

    Man marries My Little Pony character

    The system was in place for a man to not only develop such feelings, but to have “actually found a wedding chapel that will let me marry someone that most people would consider a fictional character”

    See: http://www.avclub.com/articles/the-internet-finally-reaches-its-apex-as-man-marry,94206/

    VIDEO – Man marrying Twilight Sparkle? – http://youtu.be/t926N18WLnI

    Man marries pet dog in wedding ceremony in Australia

    Dog is more than man’s best friend for one Australian.
    Joseph Guiso, a seemingly normal 20-year-old from the city Toowoomba, married

    Honey, his 5-year old yellow Labrador, in an elaborate wedding ceremony in a local park.

    Thirty or so friends and relatives attended the unusual nuptials, which included Guiso getting down on both knees to read his vows to his freakishly hairy bride.

    Read more: http://www.nydailynews.com/news/world/man-marries-pet-dog-wedding-ceremony-australia-article-1.470976#ixzz2Ui93N4ym

    What’s wrong with bestiality? Nothing? Peter Singer’s ‘Heavy Petting’

    Princeton’s favorite ethicist has gotten tired of defending killing disabled babies and has now started defending something completely different: bestiality.

    Yes. In his essay “Heavy Petting,” published at nerve.com, Singer reviews Midas Dekkers’ “Dearest Pet,” a treatise on the long and storied history of humanity’s not-so-platonic interactions with animals. Singer also throws in a few ideas of his own and tries to frame the debate in the same set of extremes. If you’re not willing to disapprove of all non-procreative sex, then you should reconsider the taboo on bestiality. After all, since sex doesn’t have to result in babies, and since we all know from reading various Singer texts that we’re not so different from animals, it’s not an offense to our dignity as human beings to have a little fun with the family pet now and then.

    See: Peter Singer’s ‘Heavy Petting’ – http://www.dailyprincetonian.com/2001/03/08/2591/

    School behavioral specialist ‘had sex with the family dog for a month’

    “If convicted of the bestiality charge, she faces up to 10 years in prison and a one thousand dollar fine.”

    Read more: http://www.dailymail.co.uk/news/article-2332246/School-behavioral-specialist-sex-family-dog-month.html#ixzz2Ui3rrtZr

    Types of marriages – http://en.wikipedia.org/wiki/Types_of_marriages

    Arranged marriage – A marriage that is at some level arranged by someone other than those being married.

    Beena marriage – A marriage where the husband and wife are completely
    independent of one another, whenever the wife enters a special tent.

    Boston marriage – A marriage-like relationship between two women, not necessarily sexual; also historic lesbian relationships.

    Celestial marriage – A marriage performed in a Latter Day Saint temple.

    Child marriage – A practice in which the parents of two small children (even infants) arrange a future marriage.

    Chinese ghost marriage/Spirit marriage – A marriage where one or both parties are deceased.

    Common-law marriage – A form of interpersonal status that is legally recognized in some jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry.

    Covenant marriage – A marriage in which the couple agrees to obtain pre-marital counseling before marrying, and accept more limited grounds for divorce.

    Endogamous – A marriage within the boundaries of the domestic group, between members of the same group.

    Exogamous – A marriage outside of the domestic group, between members of different groups.

    Female husband marriage – A marriage in which a female who has been raised as male takes a wife in order to ensure the continuity of the family.

    Fleet Marriage – The best-known example of an irregular or a clandestine marriage taking place in England before 1753.

    Flash marriage – A speedy marriage between couples.

    Forced marriage – A marriage in which one or more of the parties is married without his/her consent or against his/her will.

    Marriage by abduction – A form of forced marriage in which a woman who is kidnapped and raped by a man is regarded as his wife.

    Ghost marriage – The marriage of a woman to a man who died before he could marry using the man’s brother as a stand-in.

    Group marriage – A form of polygamous marriage in which more than one man and more than one woman form a family unit, and all members of the marriage share parental responsibility for any children arising from the marriage.

    Line marriage – A form of group marriage in which the family unit continues to add new spouses of both sexes over time so that the marriage does not end.

    Handfasting – A traditional European ceremony of marriage or betrothal, commonly practiced by Neopagans today, which may or may not result in a legally recognized marriage.

    Heqin – An arranged marriage for political alliance during Medieval China.

    Hollywood marriage – A marriage between Hollywood celebrities or a marriage that is of short duration and quickly ends in separation or divorce.

    Human-animal marriage – A marriage between a human and a non-human animal.

    Intermarriage or Mixed marriage – Marriage between people belonging to different religions, tribes, nationalities or ethnic backgrounds.

    Interracial marriage – Marriage between two people of differing races.

    Interreligious marriage – Marriage (either religious or civil) between partners professing different religions.

    Jumping the broom A Romani wedding custom once performed by gypsies; Welsh Kale, Scottish Travellers and English Romanichal groups in the United Kingdom.

    Lavender marriage – A marriage between a man and a woman in which one, or both, parties are, or are assumed to be, homosexual.

    Levirate marriage – A marriage in which a woman marries one of her husband’s brothers after her husband’s death, if there were no children, in order to continue his line.

    Love marriage – A marriage where the basis for the marriage is love.

    Mixed-orientation marriage – A heterosexual marriage where one spouse is gay, lesbian or bisexual.

    Monogamy – Marriage with one spouse exclusively for life or for a period of time.

    Mop marriage – An archaic common-law practice in which a couple could be joined by a local magistrate at the annual Mop Fair.

    Morganatic marriage – A marriage which can be contracted in certain countries, usually between persons of unequal social rank, which prevents the passage of the husband’s titles and privileges to the wife and any children born of the marriage.

    Multiple marriages

    Polyandry – The marriage of one wife to several husbands. Fraternal polyandry is a variant in which the husbands are brothers (see Polyandry in Tibet.)

    Polygamy – Plural marriage.

    Polygyny – The marriage of one husband to several wives.

    Nikah mut‘ah – A fixed-term marriage in Shi’a Islam.

    Open marriage – A marriage in which the partners agree that each is free to engage in extramarital sexual relationships, without regarding this as sexual infidelity.

    Peer Marriage is a type of marriage popular in various countries where the partners each identify as responsible for both earning and the work of parenting and child care.

    Plaçage – A recognized extralegal system in which white French and Spanish and later Creole men entered into the equivalent of common-law marriages with women of African, Indian and white (European) Creole descent.

    Posthumous marriage – A marriage which occurs after one of the individuals is deceased.

    Putative marriage – An apparently valid marriage, entered into in good faith on part of at least one of the partners, which is invalid because of an impediment.

    Same-sex marriage – A marriage between two people who are of the same sex.

    Self-marriage – A marriage by a person to himself or herself.

    Self-uniting marriage – A marriage in which two partners are married without the presence of a third-party officiant.

    Serial monogamy – Marriage to one spouse at a time.

    Sexless marriage – A marriage in which there is no sex between the two partners.

    Shared Earning/Shared Parenting Marriage – A type of marriage popular in various countries where the partners choose at the outset of the marriage to share the work of childraising, earning money, housework and recreation time in nearly equal fashion across all four domains.

    Shim-pua marriage – A Taiwanese tradition of arranged marriage, in which a poor family (burdened by too many children) would sell a young daughter to a richer family for labour, and in exchange, the poorer family would be married into the richer family, through the daughter.

    Sister exchange – The husbands trade sisters to be each other’s wives in order to keep any group from losing a woman.

    Sororate marriage – A marriage in which a man marries his wife’s sister, usually after the wife is dead or has proved infertile.

    Traditional marriage – A term used by social conservatives to describe only monogamous opposite sex marriages.

    Trial marriage – A situation were the couples agree to stay together without formalising or legalising the relationship as they wait to see whether it is going to work out.

    Walking marriage – A practice of a matrifocal group in which the woman accepts her lover each evening, but he departs in the morning to work in his mother’s household.

    Widow inheritance – The widow may have the right to require her late husband’s extended family to provide her with a new man; more commonly, she is obliged to marry the one they choose.

    Yogic marriage – A tradition of Hindu marriage done within Shavite Sadhus and Sadhvis, to enable them to get positive energy from yajnans and homas.

    Transgender marriage – A marriage in which at least one individual is transgendered.

  2. T. J. Babson said, on June 28, 2013 at 2:25 pm

    Why would Bill Clinton have signed such a law? Why would Chuck Schumer vote for it?

    Bigots.

    • Michael LaBossiere said, on June 28, 2013 at 2:43 pm

      To get elected. Back then, defending traditional marriage was a boon to being re-elected. Now, the political climate has changed. It is not uncommon for politicians to go against their alleged values in order to endeavor to win votes. As you noted, Clinton signed DOMA. Now, some Republicans are professing support for same-sex marriage.

      It is mainly about winning votes, although some folks do stick to principles (good or bad).

      The Supreme Court seems to have ruled in favor of state rights in regards to both VRA and DOMA.

      • T. J. Babson said, on June 28, 2013 at 3:41 pm

        Clinton was on his second term in 1996. He had no more elections to win.

        • WTP said, on June 28, 2013 at 3:56 pm

          See how Mike knows the answers without even thinking about it? Impressive. Wonder if there’s any correlation betwixt running and knee jerks.

        • T. J. B. said, on June 28, 2013 at 3:56 pm

          I take it back. It was a couple of months before the election.

          • WTP said, on June 28, 2013 at 6:03 pm

            Yeah…thought you were the fact checker type. You owe me one.

            • T. J. Babson said, on June 28, 2013 at 11:15 pm

              Brain lock and jet lag after a long airplane ride.

        • FRE said, on June 29, 2013 at 2:28 pm

          Although he had no more elections to win, winning favor with the public and other politicians was still a consideration because it enhanced his political power thereby helping him to get support to pass other legislation.

  3. FRE said, on June 28, 2013 at 3:48 pm

    Ajmac,

    When you wrote, “You think those who marry in the church should not have legal standing? What kind of nonsense and reverse discrimination is this?” you completely distorted what Dr. LaB had in mind.

    In some countries, the state does not recognize religious marriages and religious organizations do not recognize legal marriages. That creates no problems and is not discrimination. It is quite a simple matter for religious people to have both a religious marriage and a legal marriage.

    The simplest solution is that which is used in the above countries, i.e., for religious people to have both a religious marriage and a legal marriage. That way there would be no deprivation of civil rights for anyone and religious organizations that do not recognize same-sex marriages would not have to. Actually, they don’t have to recognize non-religious marriages now if they choose not to.

    There is no good reason for churches, temples, synagogues, mosques, etc., to be upset about the availability of same-sex legal marriages. No one is forcing them to accept them and when they object, they are simply acting like busy bodies. I have no sympathy for them whatever.

    • ajmacdonaldjr said, on June 28, 2013 at 5:01 pm

      So he’s not advocating theological marriages? He’s just throwing the idea out there? I would agree the best idea is to have a religious marriage that is also recognized by the state, which is what we have now, as well as state marriages that need not be religious, which is what we also have now. Personally, I could care less what the state does, because it doesn’t matter to me one bit that it’s going down the toilet. The faster the better, I think, at this point, because this will reveal what peoples actually believe and practice, and what they actually stand for, without the thin veneer of rhetorical bullshit we have now.

      • FRE said, on June 28, 2013 at 10:37 pm

        That might not work. Suppose that some religious marriages were unacceptable by the state, such as marriages of cousins? Some older people who are on pensions cannot get a state marriage and keep their pensions, so they opt for a religious marriage and don’t register it with the state. If the state does not recognize a religious marriage, there could be tax and other consequences for the married couple.

        • Michael LaBossiere said, on July 1, 2013 at 4:49 pm

          A good point, but if religious marriage had no legal status, then this would not be a problem. Religious organizations can define their theological unions anyway they wish, much as they can set the requirements for their priests (or whatever they call them) and define their doctrine.

          Since theological unions would have no legal aspects, then there would be no legal consequences. To use an analogy, being in a theological marriage would be like going steady or being the game master for a gaming group. These relationships are meaningful to those involved, but have no legal aspects.

  4. ajmacdonaldjr said, on June 28, 2013 at 9:43 pm

    Polygamist Activists Predict DOMA Ruling Will Usher In Legalization Of Polygamy – http://www.opposingviews.com/i/politics/polygamist-activists-predict-doma-ruling-will-usher-legalization-polygamy


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