DOMA is Dead will take you to the report announcing the overturning of the Federal Defense of Marriage law by the Supremes. And the Court’s refusal to mess with a lower court ruling that California’s initiative preventing gay marriage is unconstitutional. So gay marriage is in…or is it? And how about the mostly ignored discussion of: should it be?
If we step back from the screaming, yelling and arm-waving from either side, what’s left? Let’s have a look:
Marriage has existed generally in human cultures for purely biological reasons: Males have a roving eye and little responsibility, while females giving birth are then stuck with years of expensive responsibility called child-rearing. Women figured out way back that they had the small end of that stick. So, they made themselves as unavailable as they could and their societies, stuck with the kids the women couldn’t handle alone, supported them, establishing the ‘public interest’ in the marriage contract. The rest is details.
One salient detail is the desire of governments to encourage reproduction by subsidizing it, which is why Americans file tax returns differently depending upon marital status and whether they’re parents. And in a relic of stay-at-home motherhood, why widows’ Social Security pensions differ for that reason. The list of Federal benefits for marrieds is a major if often unacknowledged reason for the desire for gay marriage. DOMA prevented married homosexuals from sharing in those benefits; now that barrier is removed.
Marriage is a very personal contract between two adults to foster the success of procreation. Until the state took its interest, there was nothing there for homosexual people. It was irrelevant. When the state stepped in and started taking citizens’s money and handing it to married but not to single folk, everything changed. Now, it has changed again as everyone who does choose to remain single will be off the gravy train.
The obviously fair way to settle this seems to me to be: Have all of any subsidies follow the kids, no matter who their parents are and whether they’re married or not. That disentangles the goodies from the cultural battleground, right? But that’s too big a political battle, so we’ve gone the awkward, other way of redefining marriage instead. Which will as always, have unintended consequences. Congress is a committee, so is the Supreme Court. And a camel, you remember, is just a horse designed by a committee. We will be seeing polygamy, polyandry, ((fair, you know), and maybe PETA will find someone wishing to marry that camel, for all I know. Might be a consent issue there, though. And some folks will want to put the genie back in the bottle, especially church folk who see God’s wishes involved. So we’ll be a while sorting all this out.
Where are we for now? Dunno, but there are some reasonable conclusions, perhaps. For one, the Court dumped a Federal law and left a state law alone. It did NOT state that gay marriage is unconstitutional or that it is constitutional. States are supposed to be sovereign per the 10th Amendment, where the Feds aren’t given jurisdiction. The Constitution doesn’t provide directions on marriage. Reasonably, that’s the state’s business. The history of divorce suggests that it is. So maybe we’ll see divergence among the states, which will be confusing. We’ll likely have to await the confusion before the Supremes move to settle it, I think.
One writer said that this is a huge crack in the American social contract. I wonder if that is a little late; the crack came into existence back with easy divorce, female contraception and convenience abortion; the Court is just continuing to recognize where the people are already headed. The Court seems to me, a lagging indicator, generally.
Quo Vadis, Domine? Damfino, but it’s likely to prove more interesting than some of us may like… And as always, if anyone pays, it will be the kids. They don’t vote, right?