Archive for category Homosexuality

Defense of Marriage Act Partially Struck Down

Last week a Federal Judge ruled that Congress has no power to create a separate class of married couples for the purpose of regulating receipt of Federal employment benefits, and ruled Section  3 of the Defense of Marriage Act unconstitutional.  In two separate cases hinging on two different issues, the Court ruled both that Congress may not create two classes of marriage for the purposes of eligibility for Federal employment benefits because such an Act violates the Equal Protection Clause of the Fifth Amendment, and that the Tenth Amendment prohibits Federal regulation of State power to define lawful marriage.

Gill v. Office of Personnel Management:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple
entitled to federal marriage-based benefits from one not so entitled. And this court can conceive
of no way in which such a difference might be relevant to the provision of the benefits at issue.
By premising eligibility for these benefits on marital status in the first instance, the federal
government signals to this court that the relevant distinction to be drawn is between married
individuals and unmarried individuals. To further divide the class of married individuals into those
with spouses of the same sex and those with spouses of the opposite sex is to create a distinction
without meaning. And where, as here, “there is no reason to believe that the disadvantaged class
is different, in relevant respects” from a similarly situated class, this court may conclude that it is
only irrational prejudice that motivates the challenged classification.149 As irrational prejudice
plainly never constitutes a legitimate government interest, this court must hold that Section 3 of
DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth
Amendment to the United States Constitution. (Emphasis mine.)

Here the Judge rightly concluded that same-sex marriage has no effect on heterosexual marriage, and therefore the Government has no rational basis for classifying marriage other than the historical method: reliance on the states for definition.

Massachusetts v. Health and Human Services:

This court has determined that it is clearly within the authority of the Commonwealth
to recognize same-sex marriages among its residents, and to afford those individuals in same-sex
marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital
status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the
firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that
reason, the statute is invalid.

Massachusetts sued to force the Federal Government to recognize the same-sex married couples married in that state for purposes of Medicare, Medicaid, and spousal burial by the Veteran’s Administration.  Since the Constitution gives Congress no power to regulate marriage, and the Federal Government has historically accepted the definitions of marriage constructed by states (including during the age of anti-miscegenation laws), the court found Section 3 of DOMA in violation of the Tenth Amendment.

Jack Balkin (Balkinization) and Dale Carpenter (The Volokh Conspiracy) analyze the decisions much more effectively than I ever could.  But it raises questions about Congressional power that may confound some conservatives.

Congress either has the power to define marriage in this way, or it doesn’t.  Since the Constitution says nothing on the subject, such a power if it exists must rest in broader interpretation of the Commerce Clause or some other general power.  This could force conservatives into competing talking points, as they simultaneously argue that Congress has no power to regulate health care by mandating coverage, but may regulate marriage by defining it for the States.

Last night I heard Maggie Gallagher on the local Christian radio station complaining that the Obama Justice Department intentionally made a weak argument in defense of the law, forcing the judge to rule as he did because DOJ did not use the arguments Congress used to support original passage of the law (Professor Carpenter covers this).  She further suggested that the Obama Administration might refuse to appeal the decision, letting it stand, and called on traditionalists to agitate against the judge, the decision, the Obama Justice Department, and gay marriage.

Ms. Gallagher should certainly argue for her preferred policy choices.  But her rhetoric supports the judges observation that her opposition to marriage for homosexuals has more to do with “irrational prejudice” than with protecting Christian traditions–which they are of course free to continue, however this turns out.

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Putting Yourself Out There

It seems I really touched a nerve with this comment on a post about gays in the military over at The Western Experience.  The proprietor, Jason Corley, responded sharply, and upon reflection I would like to say something about why I am more open about my background than he. Read the rest of this entry »

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Crunchy Con Sex Fixation

Rod Dreher, the Crunchy Con, responds to this post by Damon Linker of The New Republic disputing Linker’s assertion that Dreher fixates on gays by pointing out that he has only placed 16 (now 17!) of 455 posts in the “homosexuality” category.  (h/t Hilzoy).  A quick read of his response, however, suggests that if Dreher doesn’t unecessarily worry himself over gays he does have something of a fixation with sex in a broader sense, and it has nothing to do with how many posts he writes on the subject.

First, however, a word about nihilism.  Dreher (and others)  seem to think that rejection of their preferred set of social norms makes one a nihilist.  This is, of course, far from the case: nihilists believe that no morals and values exist, not simply that morals and values do not come from God.  Rather, mankind’s various societies have built (for them) suitable normative infrastructures through development of shared understandings about the nature of the world and the other beings in it.  Those of us who approach life from a humanistic perspective have morals and values–we just don’t think they necessarily flow from the nature of man or his relationship with God.  The Bible, that is, establishes only one of many versions of “truth.”  This version is neither universal nor based on the nature of man; it is rather an invention of human beings who hold certain beliefs and think that these beliefs should guide human society. 

Because it does not fit his preferred normative structure with regard to sex, Dreher worries that legitimizing homosexuality “represents the culmination of the sexual revolution, the goal of which was to make individual desire the sole legitimate arbiter in defining sexual truth,” and would ”lock in, and, on a legal front, to codify, a purely contractual, nihilistic view of human sexuality.”  Of course, the silliness begins with his ascribing a “goal” to the “sexual revolution,” as if this was an organized mass movement that executed an action plan based on a strategy for changing society, and not just a bunch of (mostly) young people who decided to reject the values and social roles of the time.  He get sillier when he worries that this would place human sexuality in a contractual context, as if the very argument that the only acceptable sexual activity takes place within marriage hasn’t taken care of that long ago.  And it’s not clear how anything could be both “contractual” and “nihilistic,’ given that even human sexuality that takes place within a contractual framework follows at least some norm about agreements.

But this is not how we can tell that Dreher has a sex fixation.  We know this because he blames sexual promiscuity for conditions in the inner city without discussing the institutional sources of poverty, or the normative structures left over from America’s history of racism, or the purely capitalist effort on the part of many of the people who live there to prosper by taking advantage of black markets in drugs, guns, and stolen items.  Dreher apparently thinks that if all these people would all just quit fucking, they could all get real jobs and move into a McMansion in the ‘burbs, like all good Americans.

Dreher also argues that “permissive sexual ethic is terrible for society” because syphilis broke out among some sexually active Rockdale County, Georgia (Atlanta suburb) teenagers in 1996.  But the prevailing “sexual ethic” in 1996 Rockdale County was not a permissive one.  Arguably, social shaming of sexual activity contributed to the problem by preventing an open and honest discussion of the potential consequences of sexual activity from these kids.  This means that many may not have known much about sexually transmitted diseases and how to prevent them.  These kids did not get sick just because they had sex, they got sick because they were not given adequate health education.  When they discovered the nature of the potential consequences, in fact, they adjusted their behavior.

Socially speaking, sexual promiscuity debases character, kills souls, and insults human dignity only because we say it does.  Character, human dignity, and even the soul exist only as human constructs, and nothing about the nature of man makes human sexuality, and sexual activity, shameful except our shared understandings about when sex is appropriate and between whom.  The high dudgeon Dreher gets into about the Rockdale situation makes the point: part of what got everyone wound up about this was the ages of some of the girls, but this reflects no universal natural law governing the proper age for sexual activities shared across time and societies.  Friar Laurence married Juliet to Romeo at 13, and even her own father only wanted her to wait two more years.  The tragic consequences of the union had nothing to do with their age, but with the parents’ efforts to manage the relationships of their children for political and economic reasons.  What we see as “correct” in these situations changes over time.  Dreher can claim that his way is best, but no empirical reason exists to privelege his normative preferences over that of others: what he says is “bad” only qualifies because…he says it’s “bad.”

I don’t know the guy, so I’ll resist the urge to suggest that Dreher’s real worry is that someone else is having more fun than he is.  He would be correct to point out that sex can bring pain to people’s lives, and that too much of even the most fulfilling activity can cause problems.  But it is unfair to paint less traditional norms about sex generally, and homosexuality more specifically, as scourges of human existence.  On the other hand, it is fair to say that if Rod Dreher thinks that people having more sex than he thinks they should will destroy society then he is fixated on sex.  Sex is only inappropriate, or sinful, or shameful, because a lot of people like Dreher say it is.  If they would all just stop thinking about it so much, many of these problems might go away.

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