Defending Marriage Against Whom?

The issue of same-sex marriage is a surprisingly controversial one in the United States1. Presently, the federal "Defense of Marriage Act" (DOMA, Public Law 104-199) defines marriage as thus:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife."

This quote is actually an amendment to the original law, which essentially states that no state, territory, etc. may be required to recognise a marriage between two people of the same sex, even if the said marriage was legally performed and recognized by another state. I would like to set aside the many issues that come along with the loaded topic of homosexual marriages or homosexuality in general, and focus on the issue of this law as it relates to the U.S.'s Constitution, and in particular to the First Amendment thereto.

Marriage is technically a civil union in the United States (as opposed to a religious institution), and a minister must be licensed by the state for a marriage he or she performs to be legally binding. As such, Congress does have the prerogative to define what it is referring to when it uses the term "marriage". I am not convinced, however, that Congress legally has the power to limit the institution to heterosexual couples. What is the justification for Congress' limited definition of marriage? After doing some research (albeit somewhat limited, given my rather full schedule at present), I have found three common justifications for this definition. Here are the items in order of increasing frequency: 1) It is the traditional definition, 2) Children need male and female role models and 3) God intended for marriage to exist between man and woman. I, however, see rather glaring flaws in each of these justifications that I will now discuss.

Marriage is traditionally between a woman and man

The essence of this idea is that marriage has traditionally been between women and men, and should therefore be defined as such. I do not consider this a compelling reason to accept Congress' definition. At one point, black people were traditionally considered property and women were traditionally unable to vote. My point here is that the historical treatment of an issue does not necessarily offer prescriptive insight into the ways in which an issue ought to be handled. This is particularly true in reference to homosexual marriages, where the point of contention is the right of an individual to select a spouse of the same gender. The fact that the federal Office of Personnel Management considers discrimination based on sexual orientation to be prohibited by the federal discrimination policy2, seems to indicate a lack of consensus within the government itself. I therefore do not consider the fact that married couples are traditionally heterosexual a compelling reason to deny homosexuals the right to marry.

Children require both male and female role models

This contention makes some assumptions about the nature of marriage that I find at best highly dubious. My first point is that we are discussing the right to marry, not the right to adopt children or bring them into a homosexual marriage. Even if I were to grant the entire argument as is, it would still not provide sufficient justification for the exclusion of homosexual couples from the institution of marriage. Part of the confusion here arises from my second point, which is that this argument seems to assume that the purpose of marriage is to bear children. This assumption is not legally valid, as at no point in the marriage license is the intention or the imperative to breed discussed. While marriage may often lead to children, they are not a necessary result. Nor is marriage a necessary precondition to childbearing, as the growing number of unwed mothers indicates. This brings me to my third point, which is that the logical extension of this argument would be a prohibition of childbearing by unwed mothers. Additionally, married couples with children should be denied the option to divorce if this argument holds. While I agree that a child should be exposed to role models of both genders, I do not concede that such a role model must necessarily be a child's legal guardian. Much could be said on this topic, but as I stated previously, the right of a homosexual couple to adopt children is independent of the right to marry, and it is the latter upon which I wish to focus here.

God intended for marriage to be between man and woman

Of the three justifications for Congress' definition, I consider this one to be the most obvious and inexplicable attack on the First Amendment to the Constitution. For those of you who have not reviewed the Bill of Rights recently, Amendment I begins:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Excluding homosexual unions from the definition of marriage on the grounds that homosexuality is "not what God intended" or immoral amounts to a Congressional endorsement of the Christian, Jewish and Islamic view of marriage. That the view is held by multiple religions does not justify the transgression, as the freedom of religion has been interpreted to include the freedom from religion (i.e. atheism is afforded the same level of protection as any other religion).

A similar form of this argument is that heterosexuality is the "natural" form of sexuality, and homosexuality is a sexual perversion or aberration. Even if I were to grant the former part of this point, the fact that heterosexuality is natural certainly does not imply that it should be legally enforced. Many heterosexual men (myself included) will admit that their natural predilection is to engage in intercourse with multiple female partners. Many of us, however, do not act on such impulses because we are already committed to a monogamous relationship that feels anything but natural in light of these impulses. By considering infidelity a breach of the marriage contract, the law actually encourages the restraint of this natural predisposition. Interestingly, people opposed to the legal recognition of homosexual marriages will often make an argument against acting on ones impulses that is similar to my own when the issue of a genetic predisposition to homosexuality arises. Both parties seem to agree that a natural predisposition toward something is not sufficient grounds to afford it legal protection.

Perhaps the best way to explain my concerns with the Defense of Marriage Act would be to extend the principle to its logical extreme. That is, imagine that Congress had instead defined marriage as, "a union between two healthy, attractive adolescent human specimens who are of the same race, are of sound breeding and free of genetic defects, are capable of producing offspring, who earn a combined income of at least USD 100,000 annually, who possess no criminal record, who both possess blonde hair and blue eyes, and of which one is male and the other female". I imagine that this definition would trigger a slightly stronger reaction than the actual one passed in 1996. Yet many of the arguments used to support the actual definition could be used to support this one just as easily.

Unfortunately, the bipolar nature of many of the political controversies in this nation necessitates a qualifier on my part. In other words, I will now attempt to offend extremists from the opposite camp by pointing out that I am not addressing the moral issues of homosexuality, nor am I even contending that homosexual marriages ought to be legally recognized (although such a conclusion does appear reasonable to me). I simply wish to call into question the Constitutional validity of Public Law 104-199. I do not wish to defeat a straw man in this case, so I encourage anyone who knows of a better justification for Congress' definition of marriage to please share it.

I have posted a series of links to other resources for more information on the legal and social dimensions of this issue at http://napoletano.net/front/node/289.

1. 1. See, for instance, the Wikipedia article and related discussion regarding the Defense of Marriage Act.
2. 2. For a brief outline, read the overview on the U.S. Equal Employment Opportunity Commission's website.