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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