Editorial - Redefining Marriage
The definition is contained in the Defense of Marriage Act, signed by President Bill Clinton in 1996. At the time, there was no legal same-sex marriage in the United States, but now five states and the District of Columbia issue licenses to all couples. Because of the federal law, thousands of couples in those states cannot receive the same federal benefits as opposite-sex couples, including Social Security survivor payments and spousal burials in national military cemeteries.
There were two cases that came before Judge Tauro on this subject, allowing him to arrive at the same conclusion in two different ways. In one case, brought by Martha Coakley, the Massachusetts attorney general, the judge said the marriage act exceeded Congress’s powers and infringed on the state’s right to regulate marriage. This does not appear to be a legitimate basis for overturning the act. Many of the biggest federal social programs — including the new health care law — deal with marriages and families, as the Yale law professor Jack Balkin noted on Thursday, and states should not be given the right to supersede them.
The judge made a better argument in the other case, brought by a gay rights group, that the marriage definition violates the equal-protection provisions of the Constitution. There is no rational basis for discriminating against same-sex couples, he ruled, discrediting the reasons stated by lawmakers in 1996, including the encouragement of “responsible procreation” and traditional notions of marriage and morality. In this argument, he was helped by the Obama administration’s obligatory but half-hearted defense of the law, which since last year no longer supports Congress’s stated reasons.
Courts should generally give Congress wide deference in writing laws, but should not be afraid to examine them when challenged, to make sure they serve a legitimate purpose. The Defense of Marriage Act was passed and signed as an election-year wedge issue, and the brief debate leading up to it was full of bigoted attacks against homosexuality as “depraved” and “immoral.” One congressman said gay marriage would “devalue the love between a man and a woman.” Laws passed on this kind of basis deserve to be upended, and we hope Judge Tauro’s equal-protection opinion, which, for now, applies only to Massachusetts, is upheld on appeal.
Justice Antonin Scalia of the Supreme Court actually predicted this moment would arrive when he dissented from the court’s 2003 decision to strike down antisodomy laws. That decision left laws prohibiting same-sex marriage “on pretty shaky grounds,” he warned, since it undercut the traditional moral basis for opposing homosexuality. The Justice Department cited those words when it abandoned its defense of the law as related to procreation, which, in turn, helped lead to Thursday’s decision. The process of justice can take years, but in this case it seems to be moving in the right direction.
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