1 The Defense of Marriage Act: Mandated Discrimination Cooper Carriger UCWR 110-031 Dr. John Jacobs 16 April 2012
2 Marriage is the exclusive life-commitment made between two people who havebuilt a relationship based on respect, trust, mutual understanding, and most importantly,love. Not only is it a deeply meaningful union between two people, but also a criticalsocial institution that has been the foundation of families, communities, and societies forthousands of years. Throughout history marriage has adapted to our progressive world.What was once a narrowly defined institution adapted to become monogamous,interracial, and interreligious. The latest controversy in marriage is whether or notsociety—and by extension government—should expand its definition to include partnersof the same sex. Despite some variations of the same-sex marriage/ union being recognized in 18states, the US government has reacted strongly by implementing the Defense of MarriageAct (DOMA); a federal statute that discriminates and marginalizes gay and lesbiancouples from fully receiving their entitled rights to legally marry. Those who support theban of same-sex marriage argue a variety of claims, overall proclaiming that homosexualrelations undermine the sanctity of traditional marriage between a man and a woman.Other arguments include: creating a slippery slope for government to allow such practicesas polygamy and incest in the future; protecting the status quo of marriage; and formalrecognition of same-sex marriages will promote gay and lesbian relationships and“lifestyles.” All which are claims virtually unwarranted. DOMA is a reactionary law inresponse to the conservative movement’s hysteria to the growing acceptance for lesbianand gay people. The law has overall negative effects that come as a consequence fromsocietal and governmental prejudice of a marginalized group. Americans should whollysupport a repeal of the Defense of marriage act, by advocating for equality and
3 acceptance, recognizing that marriage should not be provocatively used as a tool ofdiscrimination. In 1996 the Defense of Marriage Act (Pub. L. 104-199, 110 Stat. 2419) wassigned into law by President Bill Clinton as a measure to strongly suppress the legitimacyof same-sex marriages—if they ever were to legally occur in the United States. At thetime of signage there were neither legally recognized same-sex marriages nor anythingthat resembed such a union. So why did the 104th Congress create a law regulatingsomething that was not even in existence? As an act of preemption: in 1996 there was aproposed bill that would legalize same-sex marriage in Hawaii. If it passed, what wouldbe its implications? Would it affect other states? Would they have to recognize thesemarriages? Would government agencies and employers be forced into providing benefitsand the same treatments already in place for heterosexual marriages? And would thisundermine American values, especially ones surrounding religion and family? Theconsequences seemed endless and possibly destructive to the nation as a whole. Without haste, Congress quickly passed DOMA with strong bipartisan support inorder to combat the looming cloud of same-sex marriage on the horizon. The Act has only two key provisions, which successfully discourages same-sexmarriage. First, DOMA defines “the word marriage meaning only a legal union betweenone man and one woman as husband and wife, and the word spouse refers only to aperson of the opposite sex who is a husband or a wife.” (H.R. 110 Stat. 2419). It alsodenies same-sex couples all federal benefits that heterosexual couples are entitled to.Essentially, the federal government has made it illegal for any federal agency, bureau, orbranch to recognize same-sex marriages. Furthermore, same-sex couples are not included
4 in the national census, able to file federal taxes jointly, or receive federal benefits such associal security. Conjointly, any employee of the federal government who is in a same-sexmarriage will not receive spousal benefits such as health insurance, life insurance,diplomatic immunity, or visitation rights. For example, if their spouse is in a work-relatedaccident they do not have the legal right to be notified. If a spouse is working overseasand an emergency evacuation is needed, the same-sex spouse does not have the guaranteeto be evacuated with their partner (Nguyen 139-14 The second provision allows states to completely bypass Article IV Section I ofthe US Constitution’s “full faith and credit” clause, as it would pertain to same-sexmarriages. The full faith and credit clause allows states to recognize and respect laws andprocedures from other states. This is why Americans can conveniently receive a driver’slicense in one state, and legally be able to drive in the other 49 states. It allows states toextradite people committed of crimes to their respective state. Also, this is why marriagelicenses issued in one state are universally recognized by all states. Provision two ofDOMA gives each state the right not to recognize same-sex marriages performed in otherstates, while simultaneously guaranteeing heterosexual couples that their marriages willstill be universally recognized (H.R. 110 Stat. 2419). Certainly any enacted law that takes away the rights and liberties from Americansseeks to serve a clear and legitimate purpose for the common good. Take state seat beltlaws for example. This law takes away the right of people not to use seat belts whenriding in a car and punishes them if caught not doing so. However, the law is publicallyembraced. It not only dramatically decreases the amount of fatalities in automobile
5 accidents, but also minimizes the healthcare required for injuries—ultimately decreasingnational healthcare insurance due to less costly medical attention required. Surely, any controversial federal statute, such as DOMA which takes away theright to marry for some Americans, would have the same clear and legitimate purpose ofserving the common good—similar to seatbelt statutes. One of the most common arguments for defending the exclusivity of marriage tobe a purely heterosexual union is by allowing same sex marriage, opposite sex marriageis inherently undermined and all its sanctity is lost. The Family Research Council, aconservative lobbying group, claims, “Homosexual marriage is an empty pretense thatlacks the fundamental sexual complementariness of male and female. And like allcounterfeits, it cheapens and degrades the real thing. The destructive effects may not beimmediately apparent, but the cumulative damage is inescapable” (Dailey 4). This maybe true for religious institutions and they are given the right to protect their respectiveideas of marriage within their organizations. For example, Catholic churches are allowedto require annulments for their members before a second marriage and can refuse tomarry Protestants or homosexuals. This is their legal right to religious freedom explicitlygiven to them by the constitution. However, the United States government is in no way a religious institution, nor inany part of the constitution does it read that the government is to seek to “preserve thesanctity of traditional marriage between a man and a woman.” If this were true, thegovernment would have enacted laws that limit the amount of marriages one can obtain,and not grant divorces. Instances such as Britney Spear’s 55-hour marriage, or currentGOP Presidential Candidate Newt Gingrich’s multiple marriages due to notorious rumors
6 of infidelity, exemplify the lacking sanctity of marriage. Proponents of protecting thereputation of the institution should be more concerned with heterosexuals devaluing thebeauty of marriage than homosexuals. It is offensive to consider that same sex couplesmaking a commitment and building a life together would take away anything from therelationships of heterosexual couples. DOMA seeks to protect the religious exclusivity ofmarriage outside their jurisdiction. As with religious exclusivity, some argue that same-sex marriage should not belegal because same-sex couples cannot reproduce. If this were a legitimate claim, then theUS government or religious institutions would not allow infertile couples to marry, norcouples that are fertile but never wish to have children. Also, gay and lesbian couples canadopt or seek to reproduce through alternative methods such as in vitro fertilization, orsurrogacy. Some opponents of same-sex marriage are concerned that it will not onlyencourage these relationships, but could be a slippery slope that would eventually allowother taboo relationships such as polygamy, as stated by current Presidential Candidate,Rick Santorum in a 2003 Associated Press Interview: If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. ... Thats not to pick on homosexuality. Its not, you know, man on child, man on dog, or whatever the case may be. It is one thing. (AP)
7 The first argument can be diminished by Pamela Clarkson-Freeman’s dissertation in theJournal of Homosexuality: The two problems with this argument are that it assumes that homosexuality is a characteristic that can be affected by approbation. Second, even if homosexuality can and should be discouraged there is reason to doubt the viability of this tack. A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. (11)The second argument is invalid because current laws against polygamy are only forprotection of monogamy and the stability it brings to society—something that same-sexmarriages also seek. Another common argument is that DOMA is only reinforcing and protecting the“Status Quo” of marriage. But this ideology seems to undermine the American value ofprogress. DOMA seeks to limit marriage between only a man and a woman in the sameway that past legislation limited marriages to be between only two people of the samerace, or when states were not allowed to legally recognize marriage of slaves. Also, if thestate of marriage as a union between only a man and a woman was so widely andcommonly accepted as a status quo, then there would be no need at all to even have astatute—because it would be uncontended. The US is built on the concepts of innovation,progress, and possibilities. It has never been a country that has tried to remain standstillin the pursuit of happiness of its citizens. Since the two main provisions of DOMA are explicitly taking away privilegesfrom same-sex couples, what are the negative consequences of this?
8 The most sensitive and probably most contended is that by prohibiting same-sexmarriage, DOMA is devaluing gay and lesbian partnerships, and thus the peoplethemselves. By discriminating marriage against gays and lesbians purely for no otherreason other than their biological predisposition is an incredibly personal attack on eachmember of the LGBT community—especially now a days given the recent string of gayteen suicides resulting from bullying. DOMA is a public statement insinuating it is notokay to be different; that if you identify as lesbian, gay, or bisexual, that there issomething wrong with you—and your relationship will never be recognized on the samepedestal as your straight counterparts. There are already an array of prejudices andstereotypes that disease our society, but by the government creating legally bindingdiscrimination, it only further solidifies these ideologies. Ultimately, DOMA is a piece oflegislation that marginalizes a specific community, demeaning people who are not a partof the majority, and takes a large step back in guaranteeing equal rights for allAmericans. The tangible benefits DOMA deprives same-sex couples of is almost limitless.There are hundreds of legal and economic benefits that married couples are entitled to.According to the US General Accounting Office, there are “1,138 federal statutoryprovisions classified to the United States Code in which benefits, rights, and privilegesare contingent on marital status…”(Frist 1). These benefits not applicable to same sexcouples include but are not limited to: receiving spousal veteran’s benefits, includingpension and survivor benefits; taxes on income, estates, gifts and property sales;receiving marital tax credit, and being able to file federal taxes jointly; federal employeespousal benefits; acquired citizenship through marriage right; social security; food
9 stamps, subsidized housing, and other related welfare programs; life insurance; healthinsurance; disability; and loan payback guarantees from the government; the list goes on(Hyde 2). Not only does this create a large unnecessary financial burden for committedsame-sex couples, but also a double standard in comparison to heterosexual marriages. Federal government employees have the most benefits to loose due to DOMA.They cannot receive any of the previously mentioned benefits because the federalgovernment is their direct employer. This discourages members of the LGBT communityfrom working for the federal government. This has a trickle down effect on society, ashighly qualified people are reluctant to take government jobs because they can find betterbenefits elsewhere. Depriving US citizens of services that should be performed by themost qualified people, some of those being gay or lesbian. Lastly, The Defense of Marriage Act is outdated and incongruent with publicopinion trends. According to the Pew Research Center, “most say that homosexualityshould be accepted by society.” Only 33% reporting that homosexuality should bediscouraged (PRC 1). Conjointly, since DOMA’s enactment in 1996, public disapprovalof gay marriage has fallen 19% to 46% disapproval—meaning more people in the nationcurrently approve or are unsure of same-sex marriage than disapprove (PRC 2). Thisshows that the current federal statute is quickly growing out of touch with what theAmerican people believe. Recently the Obama Administration has recognized this publicopinion and has instructed the Justice Department to no longer defend DOMA in court; apromising first step in repealing the Defense of Marriage Act. However, society can’t rely on just the Obama Administration or Congress torepeal DOMA in a swift and decisive manner. Constituents need to advocate for marriage
10 equality by contacting their elected representatives in Washington and expressing theirsupport for legal recognition of same-sex partners. Secondly, people can start theconversation in their communities about why guaranteeing equal rights for all Americans,regardless of their sexuality, is something that is beneficial to our nation as a whole. TheDefense of Marriage Act is a constitutionally offensive statute that seeks to marginalize aspecific group in society, by devaluing their relationships and families; lacking virtuallyany sensible legal or social support. Giving gay and lesbian couples their entitled right tomarriage will only bring more stability to society because it sets the unyielding precedentof social justice.
11 Works CitedThe Associate Press. "Excerpt from Santorum Interview." USA Today. Gannett, 23 Apr. 2003. Web. 09 Apr. 2012. <http://www.usatoday.com/news/washington/2003-04- 23-santorum-excerpt_x.htm>.Clarkson Freeman, Pamela A. "The Defense Of Marriage Act (DOMA): Its Impact On Those Seeking Same-Sex Marriages." Journal Of Homosexuality 48.2 (2004): 1- 19. Academic Search Premier. Web. 28 Mar. 2012.Dailey, Timothy J. The Slippery Slope of Same-Sex Marriage. Washington, D.C.: Family Research Council, 2004. Print.Frist, The Honorable William. “Defense of Marriage Act.” U.S. General Accounting Office. GAO-04-353R. 23 Jan. 2004.Jost, K. (2008, September 26). Gay marriage showdowns. CQ Researcher, 18, 769-792. Retrieved from http://library.cqpress.com/cqresearcher/H.R. 110 Stat. 2419, 104th Cong., 1996 US Government Printing Office (1996) (enacted). Print.Hyde, The Honorable Henry J. “Defense of Marriage Act.” U.S. General Accounting Office. Office of the General Council. GAO/OGC-97-16. 31 Jan. 1997Nguyen, Nam. "Just a Gay Spouse." Realities of Foreign Service Life. Lincoln: Writers Club, 2002. 139-43. Print. (PRC 1)"Support for Gay Marriage Nearly Matches Opposition." Chart. Pew Research Center Publications. Pew Research Center, 3 Mar. 2011. Web. 7 Apr. 2012. <http://www.people-press.org/2011/03/03/section-3-attitudes-toward-social- issues/>.
12 (PRC 2) "Support For Acceptance of Homosexuality." Chart. Pew Research Center Publications. The Pew Research Center, 13 Mar. 2011. Web. 8 Apr. 2012. <http://pewresearch.org/pubs/1994/poll-support-for-acceptance-of- homosexuality-gay-parenting-marriage>. Other sources used but not explicitly cited:Adam, Barry D. "The Defense Of Marriage Act And American Exceptionalism: The "Gay Marriage" Panic In The United States." Journal Of The History Of Sexuality 12.2 (2003): 259-276. Academic Search Premier. Web. 28 Mar. 2012.Defense of Marriage Act (1996). Andrew Koppelman.Major Acts of Congress. Ed. Brian K. Landsberg. Vol. 1. New York: Macmillan Reference USA, 2004. p198-199.Gay Marriage Controversy. World History Encyclopedia. Ed. Alfred J. Andrea and Carolyn Neel. Vol. 19: Era 9: Promises and Paradoxes, 1945-Present. Santa Barbara, CA: ABC-CLIO, 2011. p146-148.Marriage, Same-Sex.International Encyclopedia of the Social Sciences. Ed. William A. Darity, Jr. Vol. 4. 2nd ed. Detroit: Macmillan Reference USA, 2008. p619-621.