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DOMA and the Supremes


For the last two days, the Supreme Court Justices have listened to arguments for and against California’s controversial Proposition 8 law, a law that bans same-sex marriage in the state, and the federal Defense of Marriage Act (DOMA), a 1996 law that bars the federal government from giving benefits to same-sex couples, regardless of whether or not their home state legally permits them to marry.

This shouldn’t be a difficult decision to make, unfortunately, the idea of marriage equality has been so politicized by the ruling duopoly in this country that we can’t even have an honest conversation about what it means.

It is bad enough that gay men and women do not have the right to marry the person that they love in this country. It is even more reprehensible that we deny those same-sex couples who are legally married under their own state law the right to federal benefits that other heterosexual couples enjoy. And now, more than ever, is the time to push this legislation.  A poll from May 2012 found that 53% of Americans believe that it should be legal for same-sex couples to marry. Only 39% say that it should not be legal.

By virtue of the fact that we do live in something called a democracy, that should be enough. Yet somehow, the thinly veiled bigotry of the right that argues against equality for same-sex couples continues to dominate the political conversation.

Proposition 8′s supporters, for example, argued that the constitutional amendment to ban same-sex marriage in California must be put in place because, “while gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.” They argued that marriage was an “essential institution of society” and that, without this proposition, the result would be that teachers in public schools may start “teaching our kids that gay marriage is okay.” After all, why would we want our teachers to teach our children tolerance and understanding? It is hard not to respond to these quotes (taken directly from the Prop 8 voter guide) with mockery, but I will try my hardest to remain marginally objective.

So just what is this  true “definition of marriage” that supporters of Prop 8 are trying to protect? The Bible, certainly, offers little guidance as to what a “true” marriage should be. Greg Carey, a professor of the New Testament at Lancaster Theological Seminary, writes in a Huffington Post piece, “Let’s be clear: There’s no such thing as “biblical family values” because the Bible does not speak to the topic clearly and consistently.” For example, there is nothing in the Bible that could support the idea of the “nuclear family” values that some hold to be so self-evident in this country. The idea that marriage is between a man and a woman with the explicit intention of biological procreation is an absurd one. Jesus himself never took a wife, and in fact, told his disciples to leave their homes and their families to follow him. Carey writes,

“Let’s not even go into some of the Bible’s most chilling teachings regarding marriage, such as a man’s obligation to keep a new wife who displeases him on the wedding night (Deuteronomy 22:13-21), his obligation to marry a woman he has raped (Deuteronomy 22:28-30) or the unquestioned right of heroes like Abraham to exploit their slaves sexually. I wonder: Have the “biblical family values advocates” actually read their Bibles?”

It seems strange, then, that such focus is put on defining the “true” definition of marriage as between a man and a woman, yet the very source that this idea credits is the very same that advocates that a man should leave his family, sexually exploit his slaves, and in the event he finds himself raping someone, he should at least marry her. Don’t even suggest, however, that a man in love with another man, or a woman in love with another woman, cannot enjoy the right to commit to that person in marriage, if they so choose. These quotes are cherry-picking, yes, but no more so than the argument by those on the fanatical right that says the Bible defines marriage as between a man and a woman. Clearly, the Biblical definition of marriage is not so clear-cut.

What is worse even still is that these conversations are allowed in the SCOTUS courtroom. On Tuesday, March 26th, we heard arguments from Charles J. Cooper, the lawyer representing the sponsors of Proposition 8, saying that since same-sex couples cannot produce biological offspring, they should not be allowed the right to wed. Luckily, Justice Kagan recognized this idiocy. The conversation went as follows:

JUSTICE KAGAN: It seems as though your principal argument is that same-sex and opposite — opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State’s principal interest in marriage is in regulating procreation. Is that basically correct?

MR. COOPER (defending prop 8): I — Your Honor, that’s the essential thrust of our — our position, yes.


Justice Breyer: What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean, there are lots of people who get married who can’t have children.

JUSTICE KAGAN (continuing): Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional. Kagan wasn’t the only Supreme Court Justice to respond with such rationality and clear understanding of what it means to be equal under the law.

Justice Sonia Sotomayor questioned Cooper about what contexts outside of marriage would it be ok for the state to discriminate against gays or lesbians:

JUSTICE SONIA SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision making that the government could make, denying them a job, not granting them benefits of some sort? Any other decision?

CHARLES COOPER: Your Honor, I cannot. I do not have any—anything to offer you—

Of course, not all of our Justices acted so bravely and without discrimination toward the homosexual community. Justice Antonin Scalia offered us no surprises, saying that there is “considerable disagreement” about whether lesbians and gays should be allowed to raise children. Of course, there is no “considerable disagreement.” Studies have shown that the impact on children having being raised by same-sex parents has been, well, no impact. The studies found that children raised by two moms or two dads did not differ in terms of their emotional health, behavior, sexual orientation, or performance in school.

Perhaps the most absurd moment of these hearings was when Justice Anthony Kennedy warned that the Supreme Court must be careful, as they were entering “unchartered waters” and questioned whether or not they should even have taken the case. Absurd because entering these “unchartered waters” is precisely how some of the most historical and landmark cases in this country’s history have been passed.

Did we not enter unchartered waters when Roe v. Wade was passed in 1973, providing women seeking an abortion and the brave doctors who provided them protection under the law? Did we not enter into unchartered waters when the Supreme Court ruled on Brown v. Board of Education

in 1954, ruling that separate but equal was inherently unequal, and that schools across the nation must be desegregated to provide equal access to a quality education for all? These were unchartered waters and instead of balking in fear, the Supreme Court ruled on the side of equality as protected under our Constitution.

And now that is what needs to happen as SCOTUS considers the legality of laws such as Proposition 8 and DOMA. This should not be left up to the question of state’s rights. When Brown v. Board of Education was passed saying that schools should not be desegregated, they did not leave this decision up to each individual state. The sweeping decision ruled that all children in all schools should have the right to an equal education under the federal law.

The issue of same-sex marriage is no different. Denying gay men and women the right to commit to their partners with the same rights and abilities as straight couples is unjustifiable. Denying married same-sex couples the right to federal benefits that opposite-sex couples already receive is unjustifiable.

There is only one correct ruling, Supreme Court Justices, and I hope you have the moral integrity and bravery to make it. Repeal DOMA. Repeal Prop 8. Proclaim marriage and all its benefits to be a constitutionally guaranteed right to all Americans, gay or straight.

Alyssa Rohricht maintains Crash Culture and can be reached at

Alyssa Röhricht maintains The Black Cat Revolution and can be reached at

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