In 1996, the news was replete with stories that Hawaii was about to pass a law that would recognize homosexual marriage.  The concern, at the time, was that all other states would be forced to recognize marriages sanctioned in Hawaii. In response, the United States Congress passed the Defense of Marriage Bill which was signed into law by then Democratic President Bill Clinton.  This Act (DOMA), was  bipartisan legislation  that gave states the option not to recognize marriages from other states and it defined the term “marriage” for all federal legislation to mean the union of a man and a woman.  

Seventeen years later, the Supreme Court has heard a case which calls into question the legality of DOMA’s Section 3. The question at hand, “does the Federal government have the legal standing to ‘impose’ its definition of marriage on the States?”

After listening to the 2+ hours of oral argument and reading the transcript of “UNITED STATES v. EDITH SCHLAIN WINDSOR” here are some of my observations.  This is by no means a comprehensive analysis, just some thoughts on what I think might be important to the decision and coming debate.

As a side note, unlike the lawyers in Tuesday’s case regarding CA’s Prop 8, I thought both of the lawyers in this case were far more polished.  I was particularly impressed with the Mr. Clement’s ability to think on his feet and answer direct questions without wavering.

People As Economic Units

At several points in the proceedings, individuals and couples were referred to as “economic units”.  Take for example this bit from Justice Alito.

Suppose we look just at the estate tax provision that’s at issue in this case, which provides specially favorable treatment to a married couple as opposed to any other individual or economic unit. What was the purpose of that? Was the purpose of that really to foster traditional marriage, or was Congress just looking for a convenient category to capture households that function as a unified economic unit? — JUSTICE ALITO

Regardless if it is used by big corporations or big government  I take exception to this terminology as it reduces human beings into a commercial product.

Bill Clinton the Bigot?

So how did we get to this point where we are debating marriage?  It seemed the lawyers for the plaintiff wanted to paint all supporters of DOMA as religious-bigots who wanted only to suppress gays and deprive them of marital bliss. In their worldview, Congress and Bill Clinton did not pass DOMA to preserve uniformity in the Federal system, but to reinforce a moral discrimination and in so doing they violated the Federal Equal Protection Act.

The Solicitor General makes the case as follows,

” …It was enacted to exclude same-sex married, lawfully married couples from Federal benefit regimes based on a conclusion that was driven by moral disapproval. It is quite clear in black and white in the pages of the House report which we cite on page 38 of our brief -­” — GENERAL VERRILLI

Eventually, the Justices got both Ms. Kaplan and General Verrilli to concede that there were legitimate reasons why some people supported DOMA, but Chief Justice Roberts came back to this later and asked Ms Kaplan to explain why “morality” of marriage was before the court.

CHIEF JUSTICE ROBERTS: Well, but you just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted, and I’m just trying to see where that comes from, if not from the political effectiveness of — of groups on your side of the case.

MS. KAPLAN: To flip the language of the House Report, Mr. Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples’ relationships are not significantly different from the relationships of straight married people. I don’t think -­

CHIEF JUSTICE ROBERTS: I understand that. I am just trying to see how — where that that moral understanding came from, if not the political effectiveness of a particular group.

As we saw in the oral arguments from HOLLINGSWORTH v. PERRY. marriage has become a political football defined by an evolving culture and nobody can predict all the long-term consequences.  From my perspective this ongoing social upheaval will not be good for marriage or for children.

Marriage Is Already Equal

One of the biggest points of discussion in the court was the ideal of equal and uniform treatment under the law.  This, we can all agree, is an important Constitutional ethic in the United States.  Here is one comment from Justice Sotomayor I found interesting for several reasons.

But what gives the Federal Government the right to be concerned at all at what the definition of marriage is? Sort of going in a circle. You’re saying — you’re saying, we can create this special category — men and women — because the States have an interest in traditional marriage that they’re trying to protect. How do you get the Federal Government to have the right to create categories of that type based on an interest that’s not there, but based on an interest that belongs to the States? — JUSTICE SOTOMAYOR

First, while the ultimate goal is equal treatment of individuals, she discusses the preservation of States’ rights which will have significant bearing in the final decision.

Second, I was intrigued by her assertion that the Government “created” the special category of “men” and “women”.  What could this mean?  My suspicion is that she is saying that the Government has falsely recognized only two genders, male and female, but this, in her view, is a false category that does not recognize all the possible categories of gender.  Thus, in her view, to define marriage as only between a man and woman is unequal treatment because it excludes other “legitimate” categories of gender identity.

My interpretation seems to be bolstered by Justice Sotomayor’s later comment,

So they can create a class they don’t like — here, homosexuals — or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as married. The State’s control that. — JUSTICE SOTOMAYOR

From my perspective, there is already fair and equal treatment because under current marriage law, every man has the right to marry one woman, and every woman has the right to marry one man. It seems that the only “special category” being created is by the courts who want to redefine marriage based on special categories of gay or lesbian “love”.

This is probably the most important point for future consideration beyond marriage. if one rejects the notion of two sexes and embraces multiple Genders, then they would, as Sotomayor does, conclude that any and every law that recognizes only two genders is unjust. The repercussions of this for business and religion in America are going to be significant and unavoidable.

No Middle Ground

Some folks have tried to play Solomon and split the baby, as it were, by suggesting we should have two categories; Marriage for heterosexuals and Domestic Partnerships for homosexuals.  Given the following comment from Ginsburg, I don’t think this is likely.

They’re not — they’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question. It’s — it’s — as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage. — JUSTICE GINSBURG

This later exchange between Justice Alito and Ms. Kaplan seems to reinforce the Justices’ dislike of a “two-marriage” solution.

JUSTICE ALITO: Well, let me get to the question I asked Mr. Clement. It just gets rid of the word “marriage,” takes it out of the U.S. Code completely. Substitutes something else, and defines it as same-sex — to include same-sex couples. Surely it could do that.

MS. KAPLAN: Yes. That would not be based on the State’s -­

JUSTICE ALITO: So it’s just the word “marriage”? And it’s just the fact that they use this term “marriage”?

The “two kinds of ‘marriage'” seems to come too close to the rejected doctrine of “separate but equal” and so in the long-run, I don’t think any law that has two “kinds” of marriage will pass the Supreme Court.

Concerns of Federalism

Both the more Liberal and Conservative Justices were equally concerned about preserving States’ rights.  Justice Kennedy tried to get Ms Kaplan, the lawyer for the petitioner, to address the Court’s concern by asking the following,

“You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, etc., etc.?” — JUSTICE KENNEDY

Later this gets intense as Ms Kaplan continues to ignore the questions of Federalism from both Chief Justice Roberts and Justice Scalia in hopes to focus solely on the issue discrimination.

MS. KAPLAN: It has certainly been argued in this case by others that — whether or not that’s in any way the powers of the Federal Government. For the reasons Justice Kagan mentioned, we think the federalism principles go forward a novelty question. I think whether or not the Federal Government could have its own definition of marriage for all purposes would be a very closely argued question.

JUSTICE SCALIA: I don’t understand your answer. Is your answer yes or no? Is there a federalism problem with that, or isn’t there a federalism problem?

What seems clear, is that Federalism will be the key for the Justices.

My Prediction

I think the Justices will strike down Section 3 of Doma as a violation of States rights. This will be a mixed win for both Liberal and Conservatives.

The Liberals will be happy that gay marriage laws will be upheld in the 9 states who have already passed laws (and once again valid in California).

The Conservatives will be happy that traditional marriage will not be defined as “discrimination” and this should also preclude the Supreme Court from supporting future Federal law that redefines marriage.

Ultimately, the debate will go back to all 50 States and we will spend the next decade fighting political battles and passing laws to support one view or the other.  Get ready because this is going to get worse before it gets better.

No Winners

I was in complete agreement with Mr. Clements closing remarks.

” …The reason there has been a sea change is a combination of political power, as defined by this Court’s cases as getting the attention of lawmakers; certainly they have that. But it’s also persuasion. That’s what the democratic process requires. You have to persuade somebody you’re right. You don’t label them a bigot. You don’t label them as motivated by animus. You persuade them you are right.” — MR. CLEMENT

We live in a Constitutional-Republic where we have the right to disagree on these issues.  However, as long as Liberals continue to call anyone who disagrees with them a “bigot”, there will not be progress.

I will close then with some good insight from my brother David Flowers who writes,

Let’s be honest. If this is the way progressives are going to frame the issue, reflecting the typical polarities of hot-button issues within politics, they are only going to perpetuate the vitriolic climate in society—a climate they say that they lament. But I do wonder if they’re not being just as divisive and dishonest as the folks over at Westboro Baptist.

Dr. Joe Miller (aka JR) is a Professor of Applied Theology and Leadership & Dean of Online Learning at Southern California Seminary. In addition, he is a church planter and coach for emerging leaders. Dr. Miller has a diverse educational background and authored multiple books on church history, biblical theology, and Leadership. Joe and his wife Suzanne enjoy the sun and surf with their 3 sons in San Diego, CA.

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