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As of the time of this writing, forty states have banned gay marriage through legislation or constitutional amendment1. The three most recent states to join this list are California, Arizona, and Florida, which passed ballot measures in November of 2008 amending their respective constitutions to include a definition of marriage as a union between one man and one woman2. In 1996, the Defense of Marriage act was passed by the U.S. Senate and the House of Representatives (by votes of 85-14 and 342-67, respectively), defining marriage, by federal law, as a legal union between two members of the opposite sex, and giving states the right not to recognize same-sex marriages performed in other states3.
Clearly, the American public does not think too fondly of homosexual unions. But why does this bias exist? What is the primary source of this discrimination? David Binder Research, in November 2008, performed a survey of Californians who voted on Proposition 8, California's gay-marriage-ban ballot measure4. This survey found that participants who attended weekly religious services were 40% more likely to favor the ban (at 70%) than those who rarely attended. Now, when we consider that roughly 89% of religious people in America follow the Christian faith5, the picture becomes clearer: Christians are not fans of gay marriage. Correlation does not necessitate causation, however, but in this case we do have compelling evidence to suggest that the Christian faith itself is the cause of this bias, and this evidence can be found in both the Old and New Testaments of the Christian Bible.
Leviticus 18:22, "You shall not lie with a male as with a woman; it is an abomination."
Romans 1:26-27, "26For this reason God gave them up to dishonorable passions. For their women exchanged natural relations for those that are contrary to nature; 27and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error."
It seems, then, that the primary motivation of the American public to deny marriage rights to gays is based in religious doctrine. It is not a stretch to say that the passing of laws aimed at restricting homosexuals from being married is, in effect and by intention, the legislation of religious principles. At this point, it is necessary to consult the U.S. Constitution, and specifically the Bill of Rights, to determine whether these laws should be in place at all.
The First Amendment has two clauses pertaining to religion: the Establishment Clause, and the Free Exercise clause. The first of these prohibits Congress from making any law "respecting an establishment of religion," and the latter clause similarly restricts Congress from "prohibiting the free exercise thereof." It is the opinion of this author that discriminatory laws aimed at denying marriage rights to homosexuals are in direct violation of at least the first of these clauses.
The Establishment Clause, originally put in place to prevent the federal government from establishing a state religion similar to the Church of England, has been reinterpreted and broadened over the years by the U.S. Supreme Court. In Lemon v Kurtzman (1971), the Court established what has since been known as the "Lemon test," which is a three-pronged set of conditions which are meant to help determine whether a government action serves to violate either of the Religion Clauses of the First Amendment. The first of the three prongs dictates that, in order to not violate the First Amendment, the government action in question, "must have a secular legislative purpose."6
Does the Defense of Marriage Act (DOMA) have a secular legislative purpose? What about state laws which deny marriage rights to homosexuals? It has already been established that these laws have a legitimate religious purpose, but if religious motivation is the only purpose of these laws, then they violate not only the first prong of the Lemon test, but also have the primary effect of promoting the doctrines of the Christian religion (the second prong), inhibiting the religious rights of those who follow religions which permit homosexual marriage (another violation of the second prong), and constitute excessive government entanglement with religion (the third prong). The burden of proof, then, falls on the proponents of anti-gay-marriage legislation to demonstrate a secular purpose (as it is, for obvious reasons, not possible to prove a negative).
On June 11th, 2009, the U.S. Department of Justice filed a motion7 to dismiss Smelt, et al v. United States, a claim against DOMA not based on the Religion Clauses of the First Amendment. While most of the 54-page brief addresses specific arguments made by Smelt v. United States, it did make a relevant argument for the secular purpose of DOMA (which can be extended to all similar federal and state laws aimed at denying marriage benefits to same-sex couples).
The constitutional propriety of Congress's decision to decline to extend federal benefits immediately to newly recognized types of marriages is bolstered by Congress's articulated interest in preserving the scarce resources of both the federal and State governments. DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources — and deciding to extend benefits incrementally — are well-recognized legitimate interests under rational-basis review.
(Emphasis mine.)
The crux of the secular argument against gay marriage, then, appears to be two-fold: that it is a "new" and "evolving" understanding of the institution of marriage which warrants further consideration (the Department of Justice repeatedly referred to this as the "wait-and-see approach"), and that extending benefits to these "newly recognized" couples is prohibitively expensive. Neither of these points, however, hold up to rational scrutiny.
In human history, the first documented same-sex marriages were performed in the early Roman Empire8, and continued until 342 AD, when the Christian emperors issued a law making such unions illegal9. In American culture, the fight for legal recognition of gay marriage goes back at least as far as 1969, when minister Troy Perry performed the first openly same-sex wedding in California, sought legal recognition for the marriage, and filed suit when denied10. The gay marriage movement in the United States is about as "new" a concept as non-white suffrage.
And what of the increased expense to taxpayers? It is certainly in the interest of Congress to conserve government funds, so it is important to determine what the increased burden might be if federal and state benefits were extended to gay married couples. Fortunately, the Congressional Budget Office released just such an analysis in June of 200411. This analysis found that if same-sex marriages are legalized in all 50 states and recognized by the federal government, the net budgetary impact "would improve the budget's bottom line to a small extent: by less than $1 billion in each of the next 10 years." Wait, did that say improve? I thought the Department of Justice said, in 2009, almost exactly five years after the CBO's budgetary analysis, that DOMA served to preserve the resources of government.
Even the federal government itself cannot construct a compelling argument for the secular legislative purpose of the Defense of Marriage Act or similar laws aimed at denying marriage benefits to gay couples. Until such time that a coherent argument can be made, I can only conclude that the Defense of Marriage Act and all similar laws are not only unfair, discriminatory, and unethical, but are also in direct violation of the Establishment Clause of the First Amendment to the United States Constitution. For the sake of our national integrity, these laws must be abolished.
Sources:
1. http://www.hrc.org/documents/marriage_prohibitions_2009.pdf
2. http://www.msnbc.msn.com/id/27523989//
3. Defense of Marriage Act. 1 U.S.C. § 7. 28 U.S.C. § 1738C
4. http://www.eqca.org/atf/cf/%7B34f258b3-8482-4943-91cb-08c4b0246a88%7D/DBR%20PROP%208%20POST-ELECTION%20SUMMARY%20REPORT%20012109%20V2.PPT
5. http://b27.cc.trincoll.edu/weblogs/AmericanReligionSurvey-ARIS/reports/ARIS_Report_2008.pdf
6. Lemon v Kirtzman. United States Supreme Court. 1971.
7. Arthur Smelt, et al, v United States. U.S. District Court for the Central District of California Southern Division. 2009.
8. John Boswell. Same Sex Unions in Pre-Modern Europe. New York: Random House, 1995. Pages 80-85.
9. Mathew Kuefler. "The Marriage Revolution in Late Antiquity: The Theodosian Code and Later Roman Marriage Law". Journal of Family History. 32: 343–370.
10. John Caldwell. "Bringing Marriage Home". The Advocate. 2 Sep 2003.
11. http://www.cbo.gov/doc.cfm?index=5559&type=0
