Freedom Watch: DOMA bites the dust
The unanimous opinion of a panel of the First Circuit U.S. Court
of Appeals, striking down Congress' shameful "Defense of Marriage Act," may at
first appear breathtaking. However, as some have noted, the scope of the decision
is actually quite narrow ("painstakingly
narrow," Matthew R. Segal, the new Legal Director of the ACLU of Massachusetts
put it). The three judges did not directly address Congress' 1993
apparently homophobic motives for decreeing that federal programs and benefits
accorded married couples would apply only to "a legal union between one man and
one woman as husband and wife." Instead, the court examined Congress' stated
justification for enacting DOMA, most prominently "defending and nurturing the
institution of traditional, heterosexual marriage." It concluded that DOMA did
not, in fact, have any impact on traditional marriages - your gay marriage, in other
words, does not dilute or diminish my straight marriage.
Fundamentally, the First Circuit's analysis follows an overriding
theme that has been found in some of the more striking gay rights victories in
the Supreme Court. In 1996, the high court struck down a provision in Colorado's constitution
that prohibited the adoption of municipal and state regulations seeking to
protect gays from discrimination, deeming it to be the "disqualification
of a class of persons from the right to seek specific protection from the law."
In 2003, the
Court invalidated Texas' criminal statute punishing homosexual sex and, by
extension, all other state sodomy laws. This trend toward equal application of
the law, particularly on the basis of traits over which a person has no
control, can be dated at least as far back as the superbly aptly-named 1967
case of Loving v. Virginia, where the
Supreme Court invalidated a state ban against inter-racial marriage.
The basic point is elegantly simple: Unless there's a quite good
reason for distinguishing between groups on the basis of some relevant factor
over which the member has no control, the government, whether it be state or
federal, must demonstrate some palpable societal or governmental interest in
making a distinction. In the series
of pieces
I wrote
for Freedom
Watch beginning with the Massachusetts Supreme Judicial Court's 2003 landmark
Goodridge decision conferring
marriage rights on same sex couples, I explained
in
some detail the powerful lure that legal equality has in modern
constitutional jurisprudence. The Declaration of Independence, after all,
declared that "all men are created equal."
Even older is the Biblical injunction "do not do under others what you
would not have them do unto you." Or, more colloquially, "what's sauce for the
goose is sauce for the gander." It is an
idea that is as majestic as it is mundane.
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