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Striking Down DOMA and Opening a Big Door

Marriage is about to change; two rings might not be enough. Picture by Olly Bennett

Marriage is about to change; two rings might not be enough.
Picture by Olly Bennett

On Wednesday, the US Supreme Court (SCOTUS) ruled that the central provision of the Defense of Marriage Act (DOMA), that marriage be defined as a union between one man and one woman, was unconstitutional. Text of the decision available here.

Basically, the decision was reached using two separate arguments. The first was a federalist argument. Does the federal government have the authority to regulate marriage, and if so, do federal regulations overrule those enacted by the State? The second argument was a civil rights argument. Did DOMA violate due process and equal treatment under the law? the decision speaks directly to this point:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.

In short, in the eyes of the SCOTUS, DOMA was designed to harm an unpopular group.

I want to examine some perhaps unintended consequences of this basis for striking down DOMA.

First of all, we have to be clear about who was being denied equal treatment under the law. Obviously, this isn’t about gender. Men couldn’t marry men and women couldn’t marry women so the legislation was gender neutral. Somewhat less obviously, it was also sexual orientation neutral as well. I know, but before you start screaming, think about it just for a minute. A gay man could not marry another gay man, but neither could a straight man marry a straight or gay man. Same goes for the women as well. So who was treated unequally? Not just homosexuals, but any man who for any reason wanted to marry another man, or woman who wanted to marry another woman. This may seem like a meaningless distinction, but it becomes critical in just a few minutes.

The group being isolated is not isolated by sexual orientation, but by the desire to marry within their own gender, regardless of motivation. Yes, obviously, sexual orientation is the most common factor, but consider two platonic friends sharing an apartment. As has been pointed out by advocates of gay marriages, there are hundreds of benefits that accrue to a married couple. Our hypothetical roommates have been denied those benefits simply because of their gender.

The decision today changes that forever. The SCOTUS has said that the federal government cannot supersede a state’s definition of marriage, and has gone further, to say that marriage cannot be defined as one man and one woman as that would violate the equal treatment requirements. And that’s where it gets really interesting because now, the door is wide open for a complete redefinition of marriage.

For example, there is absolutely nothing in the SCOTUS decision which will allow a state to maintain bigamy laws on its books. Sure, polygamists are an unpopular group but given that the state no longer can show a compelling interest that overrides that group’s basic right to equal treatment under the law, any laws regarding polygamy can and will be challenged under this decision. I suspect that the many offshoots from the Mormon church, which have been practicing polygamy in secret for decades, will soon go public and file suit for recognition of their marriages.

As they should. Under the law, they cannot be persecuted just because they are unpopular.

And I expect we’ll see polyandrous marriages as well. Not to mention group marriages with multiple members of both genders. The SCOTUS decision opens the door and people will walk through it.

We’ve been told for decades now that a family is whatever it is, and that we shouldn’t judge. We are now going to get the chance to live that in ways that some folks never expected.

Some of you reading this are saying that I’m nuts, just an extremist ranting about things that will never happen. Your outrage is based on a sense of moral indignation because, “Obviously, allowing a man to have a harem of wives is not something we will allow. It’s immoral!” Ironically, Christians said the same thing about gay marriage and look where it got them.

Speaking of Christians, I guess I would be remiss if I didn’t give you my reaction to the decision. While the libertarian in me is happy to see the federal government backing off and letting people make their own choices, the Christian in me is saddened by the choices people are making. As I wrote on Facebook, Christianity is not about removing the opportunity to choose; it’s about making the right choice. If it were the former, God would never have given us free will.

Many Christians are reacting today with outrage at the Court and issuing dire predictions of God’s wrath on America. I don’t follow that line of thinking. Instead, I pray that God sends His Mercy and Grace to all the souls imperiled by this decision, and that their hearts may be opened to Him.

That will probably offend some folks on both sides of the issue, for either being too soft and accommodating, or too arrogant and judgmental, but the way I figure it, if you can’t please everybody, irritating them all  is the next best thing!

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