Breaking DOMA

by Jeremy Lowenthal

“Equality is the public recognition, effectively expressed in institutions and manners, of the principle that an equal degree of attention is due to the needs of all human beings”

—Simon Weil

IN 1996, Congress enacted, and President Bill Clinton signed into law an act which violated this definition of equality to its very core. The Defense of Marriage Act (DOMA) absolves states from recognizing same-sex marriages formed in other states and prohibits federal recognition of same-sex marriage in any federal program or law.

Not only has the Defense of Marriage Act reinforced American homophobia and fostered a culture of social stigmas, it has, moreover, established a system in which the federal government politically and economically discriminates against LGBT individuals and their families.

The 1996 House of Representatives Report on DOMA—a report written and published alongside the act—offers the House proponent arguments. The report postulates four broad points in favor of the act including the following:

“Defending and nurturing the institution of traditional, heterosexual marriage…defending traditional notions of morality…preserving scarce government resources.”

Ironically, the report itself—a supplement that seldom accompanies congressional legislation—evidences the constitutional contentiousness of the act. However, the constitutionality of DOMA is not the subject of this article. Instead, the following focuses on the blatant fallacies, erroneous conclusions of the Report, which the 1996 House provided to justify the social, political and economic degradation of LGBT individuals. The senseless detriment that this act inflicts demonstrates the illegitimacy of the federal ban on marriage and, above all else, stresses the need for immediate change.

Before addressing the first argument of the House Report, it is necessary to note the economic and social importance of marriage in the United Stated. For centuries, policy-makers have afforded married couples significant advantages including tax benefits, citizenship priority, spousal survivor benefits and a vast number of other entitlements. In total, the United States General Accounting Office has identified over one thousand federal benefits, rights, and privileges which are contingent on marital status.

As a result of this extensive array of advantages, couples are economically incentivized to marry. According to a 2009 study by the New York Times, an unmarried partnership with two children in New York will pay, at best, $41,196 over the course of their lives if they lack access to marriage. At worst, this couple will pay $467,562. These simple statistics demonstrate that marriage in the United States is not merely a social arrangement, but also a financial one.

Granted, policy-makers have established these marital advantages in order to advance a compelling government interest. As economist, Nancy Folbre, observes in her book, The Invisible Heart: Economics and Family Values, American laws have always privileged married partners because policy-makers recognize the “necessity of reproduction and the value of the social and economic labor used to raise children.” Folbre explains that these policies recognize the benefit of children as “public goods” in the sense that they represent the “future workforce, future parents, and future voters.”

In accordance with this line of thinking, the House Report on the Defense of Marriage Act asserts the following: “Simply put, government has an interest in marriage because it has an interest in children…If we chip away at the institution which binds these parents and the family together, the institution of marriage; you begin to chip away at the future success of that child.”

The House assertion that the public has a compelling interest in the institution of marriage is thus in accordance with the precedent which past lawmakers have set.

In accordance with this line of thinking, the House Report claims, “Civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing.” Arguments and decisions at the judicial level from the 1990s echo this argument. For example, in Singer v. Hara, one of the earliest cases arising from same-sex marriage laws, a Washington Appellate Court ruled in favor of a law which defined marriage as a union between a man and a woman. According to the decision of the court, “the fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.” Likewise, in Judge Walter Heen’s dissent to the Supreme Court of Hawaii’s 1993 decision that marriage is a form of sex discrimination, Judge Heen stated his belief that the purpose of a restrictive same-sex marriage law is “to promote and protect propagation.” These decisions represent the prevalence of this procreation assumption at both the legislative and judicial level. This argument, however, relies upon the erroneous assumption that same-sex parenting jeopardizes the upbringing of children and thus our investment in future generations.

There is absolutely no credible evidence to suggest that the Defense of Marriage Act actually benefits children in any way.

According to the Canadian Psychological Association (CPA), “the opposition to marriage of same-sex couples, on the ground is that it fails to consider the needs or rights of children, does not consider the most relevant body of psychological research into this topic or draws inaccurate conclusions from it.”

The research that the CPA cites disproves the House assertion that same-sex couples are less effective parents than heterosexual couples. This research also demonstrates that the children of same-sex parents are just as psychologically healthy and well-adjusted as those of heterosexual parents. In 2010 for example, the American Psychological Association, the American Psychiatric Association, the American Association for Marriage and Family Therapy, and the California Psychological Association together concluded the following:

“Relatively few studies have directly examined gay fathers, but those that exist find that gay men are similarly fit and able parents, as compared to heterosexual men. Available empirical data do not provide a basis for assuming gay men are unsuited for parenthood.  If gay parents were inherently unfit, even small studies with convenience samples would readily detect it. This has not been the case. Being raised by a single father does not appear to inherently disadvantage children’s psychological well-being more than being raised by a single mother. Homosexuality does not constitute a pathology or deficit, and there is no theoretical reason to expect gay fathers to cause harm to their children.”

The courts have consistently recognized and validated this scientific consensus. In 2010 for instance, the District Court of Appeals for the State of Florida examined same-sex parenting and determined that same-sex parents are equally capable of raising children. The court explained that “the issue is so far beyond dispute that it would be irrational to hold otherwise.”

In addition to recognition by the mental health community, the judiciary has thus also grown to recognize that same-sex parents are just as capable as heterosexual parents. This consensus demonstrates the fallacy of the House assumption that the Defense of Marriage Act promotes successful child-rearing.

In fact, mental health experts assert that DOMA actually undermines the development of millions of children because it denies them a stable family structure with married parents.

William Meezan, the Director of Policy and Research at Children’s Rights, observes that the children of non-married couples are denied three types of benefits which hinder their well-being:

“First, marriage may increase children’s material well-being through such benefits as family leave from work and spousal health insurance eligibility. It may also help ensure financial continuity, should a spouse die or be disabled. Second, same-sex marriage may benefit children by increasing the durability and stability of their parents’ relationship. Finally, marriage may bring increased social acceptance of and support for same-sex families, although those benefits might not materialize in communities that meet same- sex marriage with rejection or hostility.”

In agreement with Meezan’s assessment, the Massachusetts Appellate Court in the case of Goodridge v. Department of Public Health, recognized that DOMA hinders the development of children because it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure.”

The House assumption that a ban on same-sex marriage will protect children from ineffective parenting is a fiction. The Defense of Marriage Act establishes a discriminatory system in which equally capable parents and their children are differentiated and disadvantaged solely on the basis of sexual orientation.

The House insists that this system upholds traditional morals by securing the institution of marriage as a union between one man and one woman. In the twenty-first century however, this sense of morality is archaic and fails to reflect the social changes of the last twenty years.

Studies and surveys have consistently shown that a majority of Americans are proponents of same-sex marriage. For example, in 2012, the Gallup poll recorded that 53% of respondents felt that same-sex marriage should be “recognized by the law as valid, with the same rights as traditional marriages.” Therefore, the House notion of morality is outdated according to the very constituents they are obligated to represent.

With these inaccurate and, frankly, prejudice myths dispelled, the House Report now hinges on the equally disturbing assertion that legalizing same-sex marriage will strain scarce government resources. According to the Report, legalization would cost states and the federal government because it requires the extension of every government program and law to same-sex partners.

This argument is the pinnacle of hypocrisy in the Report.

As previously noted, the same-sex family structure offers the same benefits for children as the heterosexual family structure. The cost of legalizing same-sex marriage would thus promote the same compelling government interest that Congress has recognized and invested in for centuries. There is no rational excuse for the differentiation of same-sex partners and heterosexual partners. The Defense of Marriage Act is thus a blatant violation of the equal protection principle.

Congress would do well to remember the words of the Russian revolutionary, Mikhail Bakunin, who asserted that “freedom without economic equality is a pretense, a fraud, a lie.”

Fortunately, the executive and judicial branches have increasingly exerted pressure on Congress to reverse the Defense of Marriage Act. On May 9, 2012, President Barack Obama stated, “I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” Furthermore, President Obama has prohibited the Justice Department from defending the act in court.

Moreover, appeals from California and elsewhere are currently pending on the US Supreme Court docket where the court is expected to rule the Defense of Marriage Act in violation of the equal protection principle.

With growing pressure from the executive and judicial branches, Congress should act immediately to reverse this institutionalized discrimination.

In 2009 and 2011 Representative Jerrold Nadler (D-NY) introduced the Respect for Marriage Act which would reverse DOMA by forcing states and the federal government to legally recognize same-sex marriages across state borders. Despite this opportunity to reverse DOMA, Congress has failed repeatedly to pass the legislation necessary to end the senseless discrimination against LGBT individuals and their families.

Let us remember that the Respect for Marriage Act is not just about marriage. Freedom, acceptance and equality are contingent upon unmistakable and indisputable civil equality. The legacy of Simon Weil reminds us that equality is about public recognition— and the establishment of such recognition—that all human being are entitled to equal respect and protection.

The legalization of same-sex marriage is about liberty and justice and freedom for all; it’s about these principles which underpin America; these principles which binds us all inextricably together. Change is coming, one way or another; but, the opportunity for Congress to join this fight is fleeting quickly.


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