Philip Hoskins, a lawyer, earned his B.A. from UCLA in 1961 and
subsequently earned an LL.B. in 1964 from UCLA.
By Philip Hoskins
The House and Senate have passed legislation called the "Defense
of Marriage Act," or DOMA. This brilliant piece of strategy was
designed to position President Clinton and the Democrats running
for Congress as pro-gay and out of touch with mainstream America.
When the President announced his support for the legislation, some
of the wind was taken from the sails of the supporters of this
legislative gay-bashing, but it nevertheless should be called the
"Defense of Incumbents Act" instead.
Exactly what is the "Defense" in response to? Of course, the
truth is nothing at all, but the story line goes that since Hawaii
may soon legitimize, through court action, marriages between people
of the same gender, the Congress must act now to protect the
institution of marriage from this threat. Three same-gender couples
sued the State of Hawaii claiming that limiting marriage to
heterosexual couples violates the Equal Protection clause of the
state and federal constitutions. That state’s Supreme Court agreed
and has decreed that unless the legislature can demonstrate a
legitimate state interest in perpetuating the limitation on
marriage, the law is unconstitutional.
The issue of whether Hawaii will legalize same-gender marriages
is not a forgone conclusion. While so far no one has proposed
anything even remotely coherent as a legitimate reason for the ban
on same-gender marriages, it is not out of the realm of possibility
that the state may come up with a reason.
More likely, the citizens could pass a state constitutional
amendment prohibiting the marriages, and that would be the end of
the great threat. Absent from such measures, however, Hawaii is
poised to become the first state to legalize homosexual marriage.
As you probably know, the line of reasoning is that once Hawaii
legalizes same-gender marriages, then by virtue of the Full Faith
and Credit Clause of the U.S. Constitution, all states will be
forced to recognize the legality of those marriages.
While no case exists that is directly on point, there is an
abundance of legal authority for the proposition that each state
must honor the marriage laws of another state. For example, if
Hawaii allows a couple to marry without a blood test, California
would have to honor that marriage even though its citizens must
take a blood test. Exceptions to the Full Faith and Credit clause
are allowed if the state can demonstrate a "compelling state
interest" in disavowing another state’s laws.
Therefore, if Hawaii permits same-gender marriages, California
would have to demonstrate a legitimate state interest in not
honoring those marriages here.
Exactly what such a "compelling state interest" is has seldom
been addressed. Case law clearly requires it to be more than mere
preference. There must be something unusual about the rejecting
state’s situation to warrant the disregard of a Hawaiian marriage.
Therefore, the issue of whether to honor a Hawaiian same-gender
marriage depends upon much the same considerations as if the case
were brought in California instead.
Marriage has long been seen as an indication to the way a
government treats certain classes of its citizens. In other words,
the right to marry is considered everywhere to be one of the most
fundamental rights a person can have. Most of us know that within
living memory, there was a near universal ban on marriages between
persons of different races (or more precisely, between whites and
non-whites). Known as anti-miscegenation laws, the theory was that
in order to preserve the purity of the white race, inter-racial
marriages had to be prevented and that the government had a
legitimate interest in doing so.
With the advent of the civil rights movement, these laws were
struck down or repealed, but it is now obvious that the mentality
that came up with them lives on. What was then the threat to racial
purity has now become the threat to procreation, as though we had
the problem of not enough babies being born.
It should be pointed out, however, that none of these laws were
Federal; until now, it has been assumed that the U.S. government
had no business mucking around with the laws of marriage.
What might be such an overriding state interest that it would be
justified in either refusing to recognize a same-gender marriage of
Hawaii or simply refusing to permit its citizens from such
marriages? To date, most of the arguments center on four premises:
(1) it is a long-standing cultural tradition to prohibit such
marriages; (2) it would be offensive to the majority, (3) it
violates clear biblical rules, and (4) to allow such marriages is a
threat to a legitimate state interest in favoring procreation.
The first two reasons actually amount to the same thing – a
policy based upon the strong preference of the majority. The U.S.
Supreme Court may have signaled the death of such reasoning in the
recent case of Roemer v. Colorado, which struck down the infamous
anti-gay rights amendment to the Colorado Constitution.
In doing so, the Court specifically ruled that the strongly-held
prejudices of the majority cannot justify the denial of civil
rights to a minority.
The third reason, while adamantly put forth by some, would put
the state in the business of imposing the religious views of one
group on another, which presumably has been prohibited by the First
Amendment to our Constitution – Congress shall make no law
regarding the establishment of religion.
Finally, then, the state is left to argue that it can ban
same-gender marriages in order to promote reproduction.
Yes, men ( and they are nearly all men), expect that we take
seriously their statements that the reason for DOMA is that without
it there would be a threat to the reproduction of Americans. The
logic of this is so bizarre that it has never been explicated, but
it apparently goes like this: being gay or lesbian is so attractive
that if people were free to marry someone of their own gender, they
would do so rather than marry someone of the opposite gender.
Since this would inhibit reproductive rates (yes, they can adopt
and have test-tube babies, but that is not enough to keep the race
going), DOMA is bad and the Federal government needs to step in and
stop all this nonsense.
Yes, the assumption is that we stupid citizens need to be told
who, or at least what, to marry. The extensions to this logic are
truly mind-boggling. Should there not be a screening system to make
certain that only committed breeders can marry? Or, should those
without the ability to reproduce not be licensed? Maybe we should
be required to submit our prospective spouse choice to a federal
bureaucrat so that the highest IQ would be developed. These
possibilities are truly awesome.
The truth of the matter is that the threat to marriage as an
institution comes not from gays or lesbians but from the very men
who purport to defend it. Most of these men have been through a
divorce (or more) and have paid scant attention to those measures
that have the potential for actually helping families and, most
particularly, women trying to raise children alone after a
divorce.
Why isn’t DOMA a package of well-crafted legislation designed to
make marriage work and minimize the consequences if it doesn’t?
Because, for starters, these men have no intention of doing that,
nor is the topic of any business to the federal government. If
there is any point to the concept of a Republic, the individual
states must be the place where these issues are worked out.
Exactly how does preventing two men from marrying protect
heterosexual marriage? Is Congress saying that without this, they
as individuals would be tempted to go gay? Of course not. What’s
being protected are certain prerogatives and benefits set aside by
heterosexuals for their own kind. That is what this ill-conceived
piece of legislation really does. It forces gays and lesbians to
continue to subsidize married couples through tax programs and
other benefits. It is estimated that the flow of tax dollars,
health benefits and other such entitlements amount to nearly $3
billion each year – that is money out of the pockets of one group
and into those of another. And the rationale for all this? To
encourage the reproduction of more babies, an otherwise presumably
scarce commodity.
Well, the logic doesn’t wash and is exposed for what it really
is – legalized theft. Scapegoats are a necessary element of
politics. Gays and lesbians are the scapegoats of today. Tomorrow,
who knows who it will be. Be assured, however, that the genie will
not go back into the bottle. The push for full equality will not be
turned back. It is in the nature of human beings to seek this end,
and it will come to pass, sooner or later.
The real threat to marriage can be found in the hatred that the
sponsors of DOMA and other discriminatory measures bring to life.
That hatred is not isolated; it imbues their every step, their
every relationship. Congress, heal thyself. Look no further than
your nose for the real threat. You are the problem, we are the
solution.