The issue behind the new challenge to DOMA is a pretty simple one, as Kenji Yoshino explains. On what grounds does the federal government not simply recognize the marriage laws of the various states? By what reasoning does the federal government recognize all the civil marriages legal in, say, Alabama, but not all of the civil marriages legal in Massachusetts? We know the real reason: a view that homosexuals need to be discriminated against in the law in order to "protect" society from their wicked attempts to live with and care for one another. But the reason on federalist grounds is non-existent.
My own marriage license, for example, is not distinguishable from any other license issued at the same time in Massachusetts. And yet some of those other licenses allow a spouse to get social security benefits and to sponsor a non-citizen for citizenship. I'm legally married in Massachusetts and yet have no right to citizenship on those grounds. Someone who showed up on the Ptown ferry a month ago, and fell in love with an opposite-sex spouse would be eligible to become a citizen relatively soon. I've been here for 25 years and still have no right to stay here indefinitely. The clear meaning of DOMA, of course, is that a gay relationship, however long-lasting or real, is always inferior to even the most temporary straight hook-up. Or to put it another way: the reason we grant citizenship to good faith non-American spouses is because we recognize the human cruelty of forcing a human being to pick between their country and the person they love. But gays, according to DOMA, deserve the cruelty - and many are indeed forced to live abroad or leave their relationships behind.
But leave the inhumanity aside for a moment. On what conservative, federalist grounds do the feds refuse to acknowledge state autonomy in the area of family law? And why should the federal government not do what it always did in these matters: just accept the differing judgments of the states? As long as a civil marriage is valid in a state, it should be recognized by the feds. Why would a real conservative object to that?
(Photo: Jewel Samd/AFP/Getty.)
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