Printed letters, June 28, 2013

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Robert Burkholder’s Friday offering – “DOMA decision shows court is divorced from God’s law” – serves as a useful point of departure for analyzing the Supreme Court’s rationale for striking down the “one man, one woman” provision of the 1996 Defense of Marriage Act (“DOMA”).

First, as a matter of our law, because the Northwest Ordinance predated ratification of the Constitution, sentiments expressed in the former are subsumed in – and do not “trump”—the plain text of the latter, much less of the Fifth and Fourteenth Amendments.

Second, the Supreme Court’s 1885 definition of marriage in Murphy v. Ramsey as “the union of one man and one woman in the holy estate of matrimony” – with emphasis on the “one” – applied only to the statutory criminalization of polygamy.  Because that case did not address “same-sex marriage” at all, its dictum definition has no legal force today.

Third, since 1885, the federal government has increasingly utilized marital status as a convenient shorthand for conveying legal and financial benefits to spouses under civil law – presumably, to promote the stability of family units. 

More recently, some religious denominations have realized that same-sex couples are not biblically excluded from “the holy estate of matrimony”, and that the “Golden Rule” does not countenance discriminatory denigration of god’s LBGT children.  Meanwhile, several states have recognized that “gays” also form stable families worthy of taxpayer support.

Thus, in United States v. Windsor, the Supreme Court rejected DOMA’s dated definition of marriage, first, because – absent evidence of “injury”—“traditional marriage” requires no “defense” (even though House Republicans wasted $28 million justifying imaginary “harms”), and, second, because—even though Burkholder, private religious groups, and the states remain free to embrace a religious ideal of marriage – the federal government cannot constitutionally deny equal civil benefits to any legally married same-sex couples.



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