In this post, I want briefly to share some observations about the Defense of Marriage Act that the U.S. Congress passed. But first: from a site called “lectlaw,” here is an excerpt from an analysis of the Defense of Marriage Act:
This [“full faith and credit’] is a problem most properly resolved by invoking Congress’ authority under the Constitution to declare what “effect” one State’s acts, records, and judicial proceedings shall have in another State. Congress has invoked this authority recently on two other occasions; in the Parental Kidnaping Prevention Act of 1980, which required each State to enforce child custody determinations made by the home State if made consistently with the provisions of the Act; and in the Full Faith and Credit for child Support Order Act of 1994, which required each State to enforce child support orders made by the child’s State if made consistently with the provisions of the Act.
The second substantive section of the bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex. The DOMA definition of marriage is derived most immediately from a Washington state case from 1974, Singer v. Hara, which is included in the 1990 edition of Black’s Law Dictionary. More than a century ago, the U.S. Supreme Court spoke of the “union for life of one man and one woman in the holy estate of matrimony.” Murphy v. Ramsey, 114 U.S. 15, 45 (1985).
DOMA is not meant to affect the definition of “spouse” (which under the Social Security law, for example, runs to dozens of lines). It ensures that whatever definition of “spouse” may be used in Federal law, the word refers only to a person of the opposite sex.
Probably to point out the obvious, the Defense of Marriage Act is mis-named because it does not seek to defend marriage. It seeks to offend (to attack) same-sex (same-gender?) marriage. Moreover, it doesn’t defend marriage against that which really threatens it; that is, assuming (for argument’s sake) that divorce is an obvious threat to marriage, as it dissolves marriage, then the Act should address those things that lead to divorce: precipitous decisions to get married; joblessness and poverty;and so on.
Additionally, how does defining “husband,” “wife,” and “spouse” help to defend marriage? A divorced spouse by any other name is still a divorcee.
The problem (or a problem), of course, is that gay marriage (for example) is no threat to what has been conventional heterosexual marriage. How could it be? I’ve been married for almost 28 years, and not once has my (our) marriage been affected by the fact that any two other people (gay or straight) have decided to get married.
Notice, too, how out of balance a real “full faith and credit” issue is (parental kidnapping) vis a vis gay or lesbian marriage. There is some logic to the desire to make sure a parent can’t kidnap a child, go to another state, and avoid the law. There appears not be any logic to the fact that two adults can get married in Massachusetts and–somehow, some way–affect a heterosexual marriage in Kansas. Even if married heterosexual couple X were to hear about said marriage (highly unlikely), how would that affect their marriage?
I think we need a Defense of Logic Act or a Defense of Agreed Upon Facts Act or both.