The Defense of Marriage Act Goes on Trial Today

The U.S. Supreme Court will hear oral argument this morning in the case of United States v. Windsor. At issue is whether Section 3 of the 1996 Defense of Marriage Act, which forbids the federal government from recognizing same-sex marriages that are lawful under state law, violates the equal protection component of the Constitution's Fifth Amendment. Like yesterday's divisive oral argument over California's Proposition 8, today's case promises to raise fundamental questions not only about the future of gay rights, but also about the proper scope of government power.

In preparation for today's showdown at the Supreme Court, here is a selection of Reason's extensive coverage of the legal and political battles over the Defense of Marriage Act.

The Federalist Case Against the Defense of Marriage Act. The debate over gay marriage and federal power reaches the Supreme Court. By Damon Root.

Wedding Bell News. Same-sex marriage and social evolution. By Nick Gillespie.

Fair-Weather Federalists. Why conservatives and progressives should unite against an overweening national government. By Jacob Sullum.

The Libertarian Gay Marriage Paradox. How opening up marriage regulations will help make the case for eliminating them. By Scott Shackford.

Room for Disagreement on Gay Marriage. Understanding the White House's decision to stop defending the Defense of Marriage Act. By Steve Chapman.

Bob Barr Recants DOMA Very Publicly, A Couple of Months After Two Relevant Votes. By Brian Doherty.

Click below to watch Reason TV's "Citizenship Denied: DOMA, Immigration, and Gay Marriage."

Comments

[Drax the Destroyer]

As a self-absorbed lazy bastard, giving two figs about who fucks who and what they call each other is well beyond my capacity. This shit just amuses me, because in the end this is the only freedom liberal people seem to actually give a shit about. We are virtually shackled to leviathan, but it doesn't matter if Susie and Mary can be called married by said leviathan.

[Heroic Mulatto]

because in the end this is the only freedom liberal people seem to actually give a shit about. We are virtually shackled to leviathan, but it doesn't matter if Susie and Mary can be called married by said leviathan.

So what you're saying is that Liberals are pussies?

[Old Johnnie Goggabie]

You mean a momentous issue that might affect a whole 2% of the population doesn't excite you?

[Lord Humungus]

it certainly excites my FB "friends"

[Rich]

Excuse me, I just heard on the news that *almost everyone* knows a gay person!

[Auric Demonocles]

Personally, I know a couple gay people. They're all a bunch of homos.

[Taggart]

I'm sure it's true. Almost everyone knows and asshole too. So what?

[AlmightyJB]

I know several. One of my old drinking buddies is a lesbian. She's one of the coolest people I know.

[Rich]

We are virtually shackled married to leviathan

Sorry, Drax -- couldn't resist!

[Drax the Destroyer]

You fucking bastard.

[Ted S.]

Better than a frigid bastard like you. :-p

[Drax the Destroyer]

Frigid, fucking. Tomato, tomahto.

[Rich]

You fucking married bastard.

FTFY 😉

[Drax the Destroyer]

Come on Richie. Now I just feel sorry for you.

[Matrix]

Just get rid of federal recognition of marriage! There should not be special tax breaks or penalties because one is married.

[wareagle]

unfortunately, that will never happen for the simplest of reasons: there is no greater source of power than the US tax code. Every tax credit, deduction, exemption, or loophole was designed to buy someone's vote. It's a pernicious, yet very covert, means of social engineering and perpetuating political power.

[Drax the Destroyer]

Right on the money warbird. After just paying my goddamned taxes, I'm looking forward to duping some poor lass into wifedom in order to save some scratch. Plus, she can make me sandwiches.

[Matrix]

But the problem also comes with religious institutions being forced to accept gay marriages.

[mr simple]

If that were to happen then it would be a problem. But that is a separate issue and no one here is arguing for that.

[SIV]

no one here is arguing for that

UNFORESEEABLE CONSEQUENCES

[mr simple]

Not even in the slightest. The two are not exclusively connected. That's like being a closed border advocate because you don't want immigrants to get welfare. Then reform welfare, don't discriminate against immigrants. Or, you know, be honest about your bigotry and don't hide behind fallacious arguments.

[SIV]

"Close the borders until we reform welfare" = "create a new class of narrowly defined state-recognized marriage with government benefits until we get the state out of the marriage business entirely"

[wareagle]

some churches already perform gay weddings. Anyone who wants to force the hesitant ones to do so loses my support.

[Matrix]

Yes, they do. And that's good for them if it's their choice to do so. But there are other churches that do not want to, but lose in court. Same goes with Catholic adoption agencies and other service providing organizations.

[Taggart]

There is no church in the U.S. that "loses in court" and is FORCED to perform a gay marriage. Churches are not required by the state to perform marriages of any kind whatsoever. A pastor can decline to perform a marriage for any reason whatsoever. Some will decline to perfrom a marriage of a Chrsitain and a non-Christian, or even people of different Christian denominations, or of two Christian heterosexuals who are currently living together. I don't see how state marriage would change this in any way. We are not Canada. We have a fairly engrained separation of church and state. Where the freedom of religion would be encroached is in health care - forcing religious *institutions* to provide health insurance coverage for same sex married couples through the family coverage. (And, as you noted, in adoption.) And that's a problem of state involvement in health care. But I don't ever see churches being forced to marry anyone. Marriage, in a church, is a religious ceremony. Is the state going to say to whom a church may adminsiter communion or baptism? No more likely are they to say to whom you must adminsiter marriage.

[Matrix]

Gay couples sues Church for not allowing them to hold a gay wedding on Church property

[mr simple]

Yes, but argue against anti-discrimination laws, not SSM. Unless you're just using the argument as cover.

[Matrix]

I am not arguing against SSM. But it does bring about anti-discrimination suits. I would rather the government not recognize any marriage.

that's why this is important now. If we keep letting more types of marriages recognized by the state, we will never get around to "why is the government even involved?" We'll just keep on giving the government more footholds in the private lives of individuals.

[Eduard van Haalen]

Cover for what? The belief that SSM laws are bad all around, even to the extent of violating the professed libertarian principles of their supporters?

[Calidissident]

The problem is 1) marriage license laws in general and 2) anti-discrimination laws. But for some reason you think the problem is granting marriage licenses to gay people specifically. I wonder why that is?

[Eduard van Haalen]

From this article:

"Yeshiva University was ordered to allow same-sex couples in its married dormitory. A Christian school has been sued for expelling two allegedly lesbian students. Catholic Charities abandoned its adoption service in Massachusetts after it was told to place children with same-sex couples. The same happened with a private company operating in California.

"A psychologist in Mississippi who refused to counsel a lesbian couple lost her case, and legal experts believe that a doctor who refused to provide IVF services to a lesbian woman is about to lose his pending case before the California Supreme Court.

"And then there's the case of a wedding photographer in Albuquerque, N.M. [etc.]"

[jesse.in.mb]

Same goes with Catholic adoption agencies and other service providing organizations.

The Massachusetts case was pretty misleading. The Catholic adoption agency was acting as an agent of the state and refused to adopt out to gay couples (this happened before gay marriage in Mass due to non-discrimination ordinances iirc). A Mormon adoption agency still continues to function in Mass. because it was purely private and not operating on state funds.

[DJF]

So what about non-religious? This law forces everyone to accept homosexual marriages.

That is the whole purpose of laws, to force people to do things that they don't want to do. If they wanted to do something there is no need for laws.

[Matrix]

Correct, which is why people should not be forced to do business with people they do not want to, whatever that reason is. It's called liberty. If we're serious about liberty, we would not force people to interact with those they do not want to.

Do I agree with people discriminating based on certain details--race, religion, gender, height, weight, age, etc? No, but that does not mean I agree with taking away their right to do so.

[Matrix]

how does that fall under equal protections? Married people are more protected by the state than single people.

[thom]

Haven't heard this around here before.

[SugarFree]

Boy, I sure hope there are tons of food truck jokes today.

[Rich]

So, this food truck walks into a bar ....

[mr simple]

Ouch.

[Ted S.]

What's the over/under on people using "cosmotarian" as a slur?

[SugarFree]

The real question is whether it can possibly eclipse the references to having sex with other commenter's mothers.

[Ted S.]

What about other commenters' wives?

[SugarFree]

No commenter is married. We only live in our sex mother's unsexy basement. And there are no libertarian women.

[itsnotmeitsyou]

My wife is a libertarian.

[Matrix]

That's not you're wife! It's a man, baby!

[SIV]

Cosmotarian is always a slur when used by anyone other than a cosmotarian. Don't even joke about it. And tell your Mom I said "hey".

[$park?]

Food truck owned by gay women: The Tuna Taco
Food truck owned by gay men: Ben Dover's Hot Dogs

[SugarFree]

Pink Taco

[Rich]

Surprisingly tasteful.

[$park?]

That's what she said.

[Drax the Destroyer]

Henrietta's Hastily-Slapped Together Roast Beef Sandwiches Dropped on the Floor

[$park?]

How many food trucks can you park in an empty parking lot?

[SugarFree]

Zero, in Chicago. Just the way Tulpa likes it.

[Shine on, Nikki Diamond]

Bzzt. You were supposed to make a joke about whether they were parked straight, or perpendicular to traffic.

[Auric Demonocles]

Listen, you can have delicious chicken sandwiches available at 2 AM in the middle of a college campus in a upstate New York town where everything closes at 11. That'd be just plain awful.

[Lord Humungus]

this is one issue that honestly doesn't get me going.

I've "evolved" on my stance on gay marriage to the point that I just don't care.

[Rich]

So, it's now a wide stance?

[Lord Humungus]

best for shooting.

[Rich]

😎

[Drax the Destroyer]

I've lumped it into the same unmarked basket as abortion.

[Auric Demonocles]

The part that seems a legitimate concern is wanting the tax breaks, but I rarely see liberals explicitly argue for that. They probably don't want to come out against higher taxes.

[Taggart]

Other concerns include wanting spousal health care coverage, ease of property division in the even of death or divorce, ease of custody of children being granted, and the biggest one is simply wanting public acknowledgment of the validity of the relationship, which it is hoped this would force.

[Matrix]

Many health care providers already recognize gay couples and provide health coverage. But this should not be forced upon them by the government. Property division is easy to handle under contracts and wills.

Still, there does not need to be a government sanction of any marriage, gay or straight.

[Zeb]

The bigger issue is with employer provision of health insurance. A federally recognized spouse's coverage is untaxed while a same sex spouse's is taxed. Estate taxes are another big one.

I think it would be better if there were no estate tax and benefits were treated the same as other compensation, but that seems unlikely.

[Old Man With Candy]

Public acknowledgement? Why the fuck for? There's no constitutional right for "public acknowledgement" of anything. I can want public acknowledgement of the wittiness of my banter, but the government's job ends at not allowing me to be prosecuted for it. If two hermaphrodites or three Kleinfelters or four castratos, or whatever decide to form a "union" or "marriage" or whatever they want to call it, government should be completely hands-off, as it were. It doesn't impact me and it's not in any of the enumerated powers.

The left position is that we should be able to compel a formal, government approval on behalf of "society." Fuck off, slavers.

[Virginian]

I'm of mixed feelings on Prop 8, but DOMA is so blatantly unconstitutional it's not even funny. The federal government does not have the constitutional authority to regulate marriage.

[Drax the Destroyer]

I'm sure they'll justify it by citing the commerce clause or some such nonsense.

[Lord Humungus]

Penaltax!

[Rich]

Show me where in the Constitution it says "Fuck you, that's why!"

[Ted S.]

Show me on the doll where the Constitution touched you.

[Zeb]

I'm of mixed feelings on Prop 8, but DOMA is so blatantly unconstitutional it's not even funny.

Yeah, this. I have mixed feelings about the prop 8 thing, but DOMA seems pretty clear cut. States do marriage. The end.

[IceTrey]

They aren't regulating/defining marriage. They are just not granting benefits to certain people. Should I get VA benefits even though I never served?

[itsnotmeitsyou]

This just in! I just heard a libtard talking about this and I quote "I hope they get rid of that terrible DOMA thing Bush thought up."

I just had to walk away.

[Virginian]

Bet him it was Clinton. Make easy money. I do this all the time.

[Auric Demonocles]

You expect a liberal to pay for something without the government forcing him to?

[Virginian]

Hehe it's a great bet to make. Because it makes you money and more importantly it exposes a little bit of the bubble of ignorance progtards wander around in.

[itsnotmeitsyou]

I should have before I walked away. Coulda scored a free lunch.

[AlmightyJB]

If I were a chick I'd totally be a lesbian. There's something about that blond on the left I find quite sexy.

[Old Man With Candy]

It's a certain earthiness, despite the flaccid teats. You know she'd let you do all those unspeakable things with her.