Potential SCOTUS Review of DOMA Presents Potential Pivotal Moment for Gay Rights in America


On Friday, November 30th (or today as you read this), the US Supreme Court judges are expected to announce which, if any, cases related to gay rights they will review. At stake are not only the right to marry and federal recognition of marriage-related financial benefits for same-sex couples who are already married. The cases before the Court touch upon our understanding of “the family” as an essential building block of society, and whether we can reasonably expect individuals to put part of who they are on hold in order to be considered worthy citizens.

The Supreme Court has been asked to review the constitutionality of the Defense of Marriage Act (known as DOMA), a piece of legislation which was signed into law by Bill Clinton in 1996, and which forbids the recognition of same-sex marriages for the purposes of federal benefits such as tax breaks, social security survivor benefits, and estate tax.

DOMA also prohibits married same-sex couples from benefitting from the same immigration rights as married opposite-sex couples, leading to the summary denial of green cards to foreign spouses of U.S. citizens and permanent residents merely because they are not straight. But in June this year, the US Board of Immigration Appeals sent four such cases back to immigration authorities to determine whether the marriages are valid under state law and whether those marriages would qualify for immigration purposes in the absence of DOMA.

Those decisions follow Obama’s early 2011 announcement that his administration would no longer defend the constitutionality of DOMA. In fact, the Board of Immigrations Appeals’ decision appear at least in part to be made in preparation for a, hopefully not too distant, post-DOMA world. But until this law is declared unconstitutional by the Supreme Court, or repealed by Congress, DOMA will remain force.

Opponents of the federal recognition of same-sex marriage benefits at times phrase their view as a defense of “the family” as the basic building block of society, implicitly or explicitly noting that only opposite-sex couples with or without children also are worthy of state protection as inherently “good.”

And several international and regional human rights documents do, indeed, establish the “family” as a fundamental group unit of society, and, in particular, as essential in the upbringing of children and the protection of the rights of the child. 

However, the definition of what a family might look like to qualify for state protection is deliberately broad and inclusive. In 2006, the United Nations Committee on the Rights of the Child clarified that when it talks about “family,” it means any number of arrangements, including same-sex families. In February this year, the Inter-American Court on Human Rights expressed a similar notion: “The Court confirms that the American Convention does not define a limited concept of family, nor does it only protect a “traditional” model of the family.”

More to the point, perhaps, study after study has dis-proven that an opposite-sex nuclear family is the only appropriate unit for bringing up children, and more than a third of children in the United States now live in single parent households and same-sex families.

Of course, this is not about marriage in the abstract, but rather about the benefits we assign to married couples, concretely, through the law. It is precisely because marital relationship are prioritized in law that same-sex couples would benefit tremendously from being allowed to marry in the first place, and to obtain federal tax, social security, and inheritance benefits when they do. If no marital relationships were given special status under the law, the impact of DOMA might be less stark on both adults and children.

It is unlikely that the Supreme Court judges will challenge this general privilege in law. But we can hope they decide to look at the suffering its unequal implementation causes.

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  • arachne646

    It will be intensely interesting today to see which, if any, of the Prop 8 and DOMA related cases the court decides to take up. Other countries have found that their constitutions guaranteeing equality to the genders and to all people before the law extend naturally to people of all orientations, though not specifically named in such constitutions–how would the US Supreme Court rule–especially considering the best interests of the child?

  • irisheddieohara

    You can call a dog a cat if you want. Doesn’t make it a cat.  You can call it marriage when two people of the same sex uniting in front of a civil clerk, but that doesn’t make it marriage either.

     

    And you can come to our Catholic Church and demand that we “marry” you and we will go to jail before we submit to such a thing.

     

    Let’s leave religion out for a moment and just approach this from the standpoint of natural law, that is, looking at a thing and determining the proper use for it by observing its nature.  The nature of mankind is that there are two separate and distinct varities of mankind.  They are called male and female.  Looking at the bodies of both of them, it is easily seen that they are complimentary, that is, there are certain parts that are made to natural fit into each other.  These parts exist for a purpose — the creation of life.  In addition, the female has not only the ability to nurture that life within her, but to feed it when it is brought forth.

     

    Thus, a simple examination of the human body shows that male and female are designed to go fit together and that for a specific purpose.  This cannot be said of male/male or female/female attempts to couple.  Male/male couplings produce horrendous damage to the male body over a period of time. Female/female couplings do not produce offspring, as the female body is made for.

     

    Thus, the idea of “gay marriage” doe not meet with the observations of natural law, and must from that standpoint be rejected.

  • goatini

    under which the only calling and vocation for females is that of LIVESTOCK.  

  • prochoiceferret

    You can call a dog a cat if you want. Doesn’t make it a cat.  You can call it marriage when two people of the same sex uniting in front of a civil clerk, but that doesn’t make it marriage either.

     

    Actually, yes, it does. Marriage is a human creation, after all, so we get to (re)define what it is—as we have done so many times throughout history.

     

    And you can come to our Catholic Church and demand that we “marry” you and we will go to jail before we submit to such a thing.

     

    Why would anyone want to “demand” that?

     

    Let’s leave religion out for a moment and just approach this from the standpoint of natural law, that is, looking at a thing and determining the proper use for it by observing its nature.  The nature of mankind is that there are two separate and distinct varities of mankind.  They are called male and female.  Looking at the bodies of both of them, it is easily seen that they are complimentary, that is, there are certain parts that are made to natural fit into each other.  These parts exist for a purpose — the creation of life.  In addition, the female has not only the ability to nurture that life within her, but to feed it when it is brought forth.

     

    Ah, I see your problem: You just haven’t seen a particularly broad range of observations yet. You may want to study this link.

     

    Don’t worry, I’ll give you some time to adjust your worldview.

     

    Thus, the idea of “gay marriage” doe not meet with the observations of natural law, and must from that standpoint be rejected.

     

    Actually, given what humankind as a whole knows about homosexuality as a whole, “gay marriage” fully meets the observations of natural law, and must from that standpoint be accepted.