March 31, 2013

DOMA, Dred Scott, Separate-but-Equal: Adjudicating Our Sense of Reason

by Hal Gershowitz

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 Let us recognize that at different periods in our history, a case could be (and was) made to justify a prima facie (apparent, but legally sufficient) caste-system in America.  The Defense of Marriage Act (DOMA), which, as we pen this essay is being litigated before the United States Supreme Court, is, at its heart, the product of an age-old inequity that today challenges the reasonableness of our very sense of reason.  We will forego, in this essay, consideration of the strong and rather uniform religious limitations on same-sex relationships.  Religious doctrine is, by its very nature, generally of long-standing, even ancient, historicity, and which adherents of each faith accept as being handed down from on high. We respect each individual’s degree of allegiance to the teaching of his or her faith.  Our commentary is restricted to the realm of civil rather than ecclesiastical governance. There are no laws in America that are handed down from on high.  They are the handiwork of those whom we send to legislate on our behalf, and, as such, can and should always be subject to review.

The central question we address in this essay is whether there are any circumstances that justify legally relegating any law-abiding American citizens, who threaten no one, to the margins of our society.  We are hard pressed to find any such circumstance.  We find it particularly vexing that the federal government would deny same-sex couples who are legally married in any of nine states essential rights and benefits accorded to all other married couples.  Yes, we can conjure up hypothetical circumstances in which a state might legislate a right that is so contrary to the general welfare that the federal government would legislate a renunciation of that very same right.  We do not believe, however, that DOMA was legislated to protect the general welfare.  Rather it was legislated to protect long-held religious doctrine and social custom.

While we will not address the rigidity with which religious doctrine is enforced and imposed, we recognize and celebrate the changing nature of social custom in America.  America has, during its sometimes turbulent and distant past, legislated and adjudicated and, thereby rationalized, the denial of basic civil rights to otherwise decent, law-abiding Americans.  America has addressed those past inequities.  Customs once believed to be sacrosanct have evolved and changed to the betterment of our nation. The odious Dred Scott Decision was once consistent with the customs of much of America, and the doctrine of separate-but-equal (segregation in public facilities) was, for many years, the law of the land.  DOMA is, in our opinion, cut of the same cloth.  It is prejudice and discrimination masquerading as noble public policy.

We do not question that the vast majority of Americans, ourselves included, function under a different paradigm with respect to intimate relationships than those of our fellow Americans who are attracted to, and who choose, same-sex partners.  But that should be highly irrelevant in the conduct of the nation’s business.   The discomfiture of the majority with the customs or practices of a minority (that do them no harm) should confer no rights on the majority to legislate against that minority.  John Adams recognized the danger of such behavior by a heavy-handed majority when he introduced the phrase “tyranny of the majority” into our national discourse.  Alexis de Tocqueville, in his 1835 “Democracy in America” also warned of a possible “tyranny of the majority” rising in the America he so admired.  And, of course, the critical Federalist Papers (Federalist 10) warns of “the superior force of an interested and overbearing majority (emphasis added).

Often the proponents of DOMA (or the opponents of same-sex marriage) point to the enduring and generally consistent and ageless definition of marriage, and argue that an institution of such long standing should not be tampered with.  Indeed marriage, defined more or less as we know it, appears to have a longer pedigree than recorded history itself.  However, if the proponents of DOMA are going to rest their case on history they will find themselves carrying more baggage than they bargained for. We have long since jettisoned much of that baggage such as the subservient role of the wife to the husband, the wife as property and divorce being the sole right of the male in a marriage.

Opponents of same-sex marriage frequently argue that children raised by same-sex parents will be disadvantaged compared to their peers raised by heterosexual parents.  The facts, however, preliminary as they are would beg to differ.  There is, according to the American Academy of Pediatrics, growing data (from more than 80 separate studies) that indicate that children raised by same-sex partners do just fine.  The sexual orientation of parents turns out not to be a major determinant in how well children fare in school, on cognitive tests and in terms of their emotional development. What matters more, researchers found, is the quality of parenting and the family’s economic well being.

Opposition to same-sex marriage, especially church-related opposition, often focuses on the sanctity of the family.  Such opposition presupposes that the traditional nuclear family is stronger, sounder and more durable than families with same-sex parents.  The data, however, does not seem to bear this out either.  The divorce rate among traditional families hovers around 50%, and early data suggest a higher rate of divorce among heterosexual couples than among same-sex couples.  In the interest of fairness, we note that nearly two-thirds of married, same-sex couples are women and, in general, have been together for a significant period of time before taking advantage of the recent opportunities to marry.  Nonetheless, the argument that heterosexual families are more stable and durable than same-sex-centered families seems to be wishful thinking by opponents of same-sex marriage. The early data simply do not support this widely held assumption.

Furthermore, just whose well being are we compromising when we limit federal benefits to one class of legally married couples (heterosexual couples) at the expense of another class of legally married couples (same-sex couples).   When the federal government denies same-sex couples access to the myriad of rights and benefits that accompany DOMA-sanctioned marriage, it is at the same time, denying those rights and benefits to their children as well. Are these children not entitled to the same social and legal support that comes with having parents whose marriage is defended by the Defense Of Marriage Act?

Social customs change even if religious doctrine tends not to.  With respect to marriage, 20% of our states have, in recent years, accorded full rights to same-sex couples with no discernable negative impact, and preliminary data suggest marital stability at least equal to heterosexual marriages.  Nations in the developed world are readdressing age-old customs, as are we in the United States. To date, Argentina, Belgium, Canada, Denmark, Iceland, Netherlands, Norway, Portugal, Spain, South Africa, Sweden have recognized same-sex marriages with no discernable negative impact.

In the past, America reasoned that the Dred Scott decision and, later, the Doctrine of Separate but Equal Rights was the American way.  DOMA reasons that restricting the rights of same-sex marriages is also the American way. Somehow, to us, it seems nothing more than a denial of a civil right… something that seems quite un-American.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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18 responses to “DOMA, Dred Scott, Separate-but-Equal: Adjudicating Our Sense of Reason”

  1. Mike says:


  2. Stevemarcus says:

    The Supreme Court couldn’t say it any better.

  3. Andy Lask says:

    Hard to believe there is a need to address this subject, well done!

  4. sheila says:

    For once, I agree with you 100%. Bravo!

  5. Stephen Prover says:

    Delighted to read your always impeccably written blog without the usual moments of angina discomfort. I often ask, “What has happened to the truly compassionate conservative Republican “progressive”.
    What a pleasure to read a carefully thought out Conservative Blog with which I find nothing to disagree.
    Where are the other highly regarded Republican social progressives?

  6. Alan Salzman says:

    In Sunday’s New York Times, Maureen Dowd makes a point about
    blacks during the 1967 Loving v Virginia argument before the Supreme Court.
    The justices stated “the freedom to marry has long been recognized
    as one of the vital personal rights essential to the orderly pursuit of happiness by free men”
    She further adds that this paved” the way for Clarence ansd Ginni Thomas to marry to live happines ever after in Virginia”
    It will be interesting to see where Justice Thomas stands on the issues before the court. I am not expecting a breakthrough.

  7. Iyablans says:

    Same sex marriage will become the law of the land.
    It has become the politically expedient thing to do.
    It is obvious that no general election can be won by a candidate who opposes gay rights and it is amusing to watch previously dogmatic opponents of both parties suddenly become enlightened.

  8. Maryanne Vandervelde, PhD says:

    The only seemingly relevant argument, to me, is Ruth Bader Ginsberg’s question whether Roe v Wade is a prediction of the public’s attitude when a social change is forced upon them. Would you consider an in-depth look at why laws re: abortion seem to have gone backward — especially in this day when organized religion is waning. Are the Catholic church and evangelicals really that strong? What can the rest of us do to counter their unreasonable effect on our freedoms re: abortion, as well as end-of-life dignity?

  9. Ellen Glass says:

    Right on…well done…as always, I hope the right people read this essay.

  10. susan duman says:

    This was the smartest essay I have read in a very long time.
    Thanks for your hard work and impeccable writing skills.

  11. Meech says:

    Well stated!

  12. Ellen says:

    Great articulation of all the important points. Too bad you’re not sitting on the bench!

  13. mark j levick says:

    Clinton signed DOMA into law in 1995. Less than a year ago Obama was not a supporter of same sex marriage. Times change. Sometime slowly. Sometime quickly. Same sex marriage is now deemed to be a civil right. Can the right to abortion be far behind? We will know in due time regardless of the Court’s decision on the Constitutionality of all or parts of DOMA. Let’s not overlook the other issue before the Court: Can a State deprive same sex couples of the civil right to marry by a duly passed voter referendum? Perhaps the tyranny of the majority will give way to a new birth of freedom for everyone to do whatever he or she chooses so long as such customs “do no harm”. Regrettably it will be up to the Courts to define “harm”. Some things never change.

  14. John Fairfield says:

    I was delightfully surprised by your essay. Even more surprising was the lack of disagreement with your views. One additional point that could be made is that same sex marriage is a child welfare issue. With an increasing number of couples becoming parents through adoption or other means, both partners need a legal obligation to their child in the event of separation.

  15. Charles Anderson says:

    very well done guys; you identified the core issue here. recent polls indicate that 80% of those under age 30 support same sex marriage.
    The stats on impact on children are spot on. though perhaps as usual filmmakers were way out in front on this issue, to wit:
    ‘THE BIRDCAGE’ starring
    Robin Williams,Gene Hackman, Nathan Lane,Dianne Wiest, Calista Flockhart, Hank Azaria,And Christine Baranski

  16. Jen says:

    Yes! You are, of course, exactly right on the issue of same-sex marriage, and I especially appreciated your reasoning on the appropriate place for religion in civil society because it applies to so many issues affecting our democracy and thus our liberty. I’m going to keep this essay tucked away in my back pocket for those instances when intellectual debate becomes halted as soon as religion is used to justify repression or inequality. The Women of the Wall are just one example of the continued oppression of half the World’s population in the name of religion. Here’s hoping that same-sex couples can score one for reason.

  17. Rita Novak says:

    I couldn’t agree more with this wonderful article. I hope that you sent copies to the Supreme Court and find someone to enter it into the Congressional Record. Your points are very persuasive.

  18. Solomon Menashe says:

    You right on in your essay “Sins of Omission”. We were also lied to re. social security and Medicare. The actuaries told us then that those programs were under funded . We who were in the business knew that the Affordable Health Care Act was not affordable.

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