Posts tagged ‘DOMA’

The Downfall of DOMA

Supreme Court 1The headline was welcomed with both cheers and tears:  “Supreme Court strikes down Defense of Marriage Act.”[1]  For some, this ruling was a welcomed vindication – and indication that the argument for same-sex marriage had not only won the day in the Supreme Court, but in the court of public opinion.  Others were saddened and even embittered.  Former Arkansas Governor and presidential candidate Mike Huckabee tweeted:  “My thoughts on the SCOTUS ruling that determined that same sex marriage is okay:  ‘Jesus wept.’”[2]

So how is a Christian to respond to this ruling?  There are two things I believe that are paramount to any Christian’s response.

The first is humility.  Responding with bravado – either for or against this ruling – is not helpful.  Whether it be the raucous celebrations of many of this ruling’s supporters or the vitriolic denouncements of many of this ruling’s detractors, anything less than a humble and gentle spirit leads to combat rather than conversation.   And as I have written elsewhere, simply trying to win against each other rather than listening to each other means that no matter who supposedly “wins,” everybody loses.[3]

The second thing needed is honesty.  Christians need not compromise moral conviction when it comes to human sexuality.  We simply must hold to our convictions humbly rather than haughtily.  The biblical moral vision for human sexuality is clear:  sexual intimacy is to be reserved for a husband and wife in the lifelong covenant of marriage (cf. Genesis 2:24-25).  Deviations from this – be they fornication, adultery, or homosexuality – are prohibited by Holy Writ.  It’s okay to say this.  It’s okay to stand up for this.  It’s okay to make a moral pronouncement on marriage.

Indeed, as I have thought through the court’s ruling on DOMA, I find Justice Kennedy’s majority opinion to have far reaching moral implications:

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. … H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.”… The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” … The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.”[4]

In Justice Kennedy’s opinion, DOMA was drafted and passed into law with the express purpose of interfering “with the dignity of same-sex marriages.”  How does he know this?  Because DOMA demonstrates “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”  In other words, Justice Kennedy claims that the Judeo-Christian morality in which DOMA is grounded diminishes the dignity of same-sex marriages.  Such a diminishment cannot be tolerated.  It is, in a word, illegal.  This is why DOMA must be overturned.

The duty of the Supreme Court justices is to render legal decisions.  But every legal decision carries with it an indissoluble moral component.  In this instance, this legal decision’s moral component is in the declaration that a law based on the Judeo-Christian sexual moral standard is discriminatory and illegal.  Such a pronouncement replaces the Judeo-Christian sexual moral standard with a sexual moral standard of its own – one that is open to same-sex marriage while still, interestingly enough, discriminating against other forms of marriage (e.g., polygamy).  Thus, what Justice Kennedy and the Supreme Court majority have done is issued not only a legal opinion, but a moral valuation.

Laws are irreducibly moral.  Laws against murder or perjury or theft inevitably promote some vision of what morality is and means. Thus, even the justices of the Supreme Court cannot render a strictly amoral legal verdict on whether or not to federally recognize same-sex marriages.  What they declare on this issue will always, in some way, involve judgments of and on morality.  The question we must ask ourselves is, “Is the morality of the Supreme Court majority the right morality?”

Justice Kennedy has given his answer.  What’s yours?


[1] Pete Williams & Erin McClam, “Supreme Court strikes down Defense of Marriage Act, paves way for gay marriage to resume in California,” NBCNews.com (6.26.2013).

[2] Mike Huckabee, twitter.com/govmikehuckabee (6.26.2013).

[3] Zach McIntosh, “The State Of Our Public Debate: Same-Sex Marriage As A Test Case,” zachmcintosh.com (4.8.2013).

[4] United States v. Windsor, 570 U. S. 1 (2013).

July 1, 2013 at 5:15 am Leave a comment

The State Of Our Public Debate: Same-Sex Marriage As A Test Case

Red Equal SignWhen the Facebook page of the Human Rights Campaign changed their profile picture to a red and pink equal sign on March 25 in anticipation of the Supreme Court hearing cases on the constitutionality of Proposition 8, which prohibits same-sex marriage in California, and the Defense of Marriage Act, which restricts federal marriage benefits to only opposite sex marriages, the response of many in the Facebook universe was nearly instantaneous.  By the time the Supreme Court was listening to arguments for and against Proposition 8 the next day, roughly 2.7 million people had changed their profile pictures to the red and pink equal sign.[1]

Welcome to the way we debate and discuss watershed issues in the digital age.  We post a profile picture.

As I have watched the national debate over same-sex marriage unfold, I have been struck by the daftness of so many of the arguments concerning such a monumental issue.  As a Christian, I have grave theological and moral concerns with same-sex marriage, but others have registered cogent concerns with same-sex marriage quite apart from the traditional moorings of biblical Christianity.  For instance, in their book What Is Marriage? Man and Woman: A Defense, Sherif Girgis, Ryan Anderson, and Robert George offer an excellent argument for traditional or, as they call it, conjugal marriage over and against a revisionist view of marriage.  The heart of their argument is this:

If the law defines marriage to include same-sex partners, many will come to misunderstand marriage.  They will not see it as essentially comprehensive, or thus (among other things) as ordered to procreation and family life – but as essentially an emotional union…If marriage is centrally an emotional union, rather than one inherently ordered to family life, it becomes much harder to show why the state should concern itself with marriage any more than with friendship.  Why involve the state in what amounts to the legal regulation of tenderness?[2]

The authors’ argument is simple, yet brilliant.  Those who argue for same-sex marriage seem to define marriage based strictly on affection.  But there are many relationships that are affectionate, such as friendships, and yet are not state-regulated.  So marriage must be something more than simple affection.  But what more is it?  This is a question that proponents of same-sex marriage have a difficult time answering with any uniformity.

Sadly, the work of these authors has not been well received or responded to.  Ryan Anderson, appearing on the Piers Morgan Show to explain the arguments of his book, was attacked by Suze Orman who dismissed him as “very, very uneducated in how it really, really works.”[3]  Considering that Anderson is a fellow at the Heritage Foundation who received his degree from Princeton and is currently working on a Ph.D. from the University of Notre Dame, I find it hard to believe that he is “very, very uneducated.”

In another example of supporters of traditional marriage being flippantly dismissed, Kevin Drum of Mother Jones took Ross Douthat of the New York Times to task for daring to suggest that an orientation toward procreation ought to be part of the definition of what constitutes a marriage:

It was opponents [of same-sex marriage], after realizing that Old Testament jeremiads weren’t cutting it any more, who began claiming that SSM should remain banned because gays couldn’t have children. This turned out to be both a tactical and strategic disaster, partly because the argument was so transparently silly (what about old people? what about women who had hysterectomies? etc.) and partly because it suggested that SSM opponents didn’t have any better arguments to offer. But disaster or not, they’re the ones responsible for making this into a cornerstone of the anti-SSM debates in the aughts.[4]

In his response, Douthat questions Drum’s account of the origin of the procreation argument for traditional marriage:

If gay marriage opponents had essentially invented a procreative foundation for marriage in order to justify opposing same-sex wedlock, it would indeed be telling evidence of a movement groping for reasons to justify its bigotry. But of course that essential connection was assumed in Western law and culture long before gay marriage emerged as a controversy or a cause. You don’t have to look very hard to find quotes…from jurists, scholars, anthropologists and others, writing in historical contexts entirely removed from the gay marriage debate, making the case that “the first purpose of matrimony, by the laws of nature and society, is procreation” (that’s a California Supreme Court ruling in 1859), describing the institution of marriage as one “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated” (that’s William Blackstone), and acknowledging that “it is through children alone that sexual relations become important to society, and worthy to be taken cognizance of by a legal institution” (that’s the well-known reactionary Bertrand Russell).

Douthat ends his response to Drum with a brilliant one-liner:  “Once you’ve rewritten the past to make your opponents look worse, then you’re well on your way to justifying writing them out of the future entirely.”[5]

This line, more than any I have read in a long time, encapsulates the problem with our public debates – not just over same-sex marriage, but over many controversial issues.  No longer are people interested in debating a big issue with the kind of intellectual rigor or careful thought such issues deserve. Instead, we change our Facebook profiles to an equal sign.  Or we ridicule a Notre Dame Ph.D. candidate as “uneducated.”  Or we make patently false claims about the historical origins of our opponents’ arguments.  We try to write our opponents out of the future entirely.

We, it seems, are much less interested in intelligently discussing and debating an issue and much more interested in asserting our will on an issue.  We no longer care whether or not we arrive at the right position on an issue as long as others bow to our position on an issue.  And, lest I be accused of intimating that only proponents of same-sex marriage engage in such dubious debate tactics, let me be clear that I have seen opponents of same-sex marriage pull these same kinds of sorry tricks.  After all, they’re on Facebook too.  They host cable news shows too.  They write less than thoughtful columns too.

The nihilist Nietzsche seemed to take special delight in laying bare the basest corners of human nature.  In his seminal work Beyond Good and Evil, he summarizes his thoughts on the heart of humanity:  “A living thing seeks above all to discharge its strength – life itself is Will to Power.”  Nietzsche purported that people, at their cores, desire to assert Machiavellian power over others much more than they ever desire to converse with others.  This is why Nietzsche saw “slavery in some sense or other”[6] as necessary to human advancement.  Those who are strong must assert their wills over those who are weak.

As I have watched the debate over same-sex marriage unfold, I have become worried that Nietzsche just might be right.  In this debate, winning against the other side has become more important than discussing and reasoning with the other side to arrive at the right side.  And because of that, I can’t help but think that, no matter who wins, we might just all lose.


[1] Alexis Kleinman, “How The Red Equal Sign Took Over Facebook, According To Facebook’s Own Data,” The Huffington Post (3.29.2013).

[2] Sherif Girgis, Ryan Anderson & Robert George, What Is Marriage?  Man and Woman:  A Defense (New York:  Encounter Books, 2012), 7, 16.

[3] Jamie Weinstein, “Fresh off his Piers Morgan confrontation, Ryan Anderson explains his ‘un-American’ views on marriage,” The Daily Caller (3.30.2013).

[4] Kevin Drum, “The Gay Marriage Debate Probably Hasn’t Affected Straight Marriage Much,” Mother Jones (3.31.2013).

[5] Ross Douthat, “Marriage, Procreation and Historical Amnesia,” The New York Times (4.2.2013).

[6] Friedrich Nietzsche, Beyond Good and Evil (New York:  The Macmillan Company, 1907), 20, 223.

April 8, 2013 at 5:15 am 2 comments


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