Did the Supreme Court strike down DOMA because it was Theocratic?

The Supreme Court decision authored by Justice Kennedy spends a lot of time arguing that marriage is a matter for the states to regulate, and that the Federal intervention to punish a class of people (married gays) that the states wish to protect is too wide-ranging to survive.

The decision also invokes the 5th Amendment, which states that persons shall not “be deprived of life, liberty, or property, without due process of law.”

But there is a third argument, which is also important to the decision, which is that the Defense of Marriage Act is explicitly rooted in religious values.

The majority opinion notes,

“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than anincidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Actconfirms it: The Defense of Marriage.”

The DOMA legislators in the House, in other words, made a big mistake. In their acknowledgment of the legislative history, they represented themselves as discriminating against a class of people not just on traditional moral grounds but on Judeo-Christian grounds.

At that point, they were contravening not only the Fifth Amendment but the First Amendment. The Congress attempted to Establish Christianity as a state religion and over-ruled state law on those grounds.

The majority decision also argues of DOMA that “The principal purpose is to impose inequality, not for other reasons like governmental efficiency.”

Although the decision in the end appeals to the Fifth Amendment and the Fourteenth Amendment protections against arbitrary and unequal treatment of a class of persons, the paragraph quoted above contains broad hints that one of the things most troubling to the majority about DOMA was its rootedness in religion.

It is not clear to me why the Court did not pursue the First Amendment angle that they so clearly broached. Perhaps it is just a matter of parsimony, since the Fifth Amendment and the long-recognized rights of the states are enough grounds to strike DOMA down. But bringing up the theocratic underpinnings of DOMA may have been intended to discourage the Evangelicals in Congress from trying this kind of tactic again.

It may also have amused the majority to deploy a States Rights argument against the Evangelicals, who usually are the ones attempting to over-rule the Federal government on those grounds so that they can put everybody under the authority of their pastors.

At a time when Republican Evangelicals in North Carolina have been seriously considering an attempt to make Christianity the state religion, even an aside of this sort in a major Supreme Court decision is a useful reminder to the theocrats that there are things, up with which even a conservative SCOTUS will not put.

6 Responses

  1. In 1967, The U.S. Supreme Court reversed the felony conviction of a white man arising out of his marriage to a black woman(Loving versus Virginia)on Equal Protection Clause grounds and put an end to enforcement of criminal laws in Southern states barring interracial marriage. The concept of regulating marriage is nothing new from Sourthern legislators.

    The Establishment Clause of the First Amendment was not likely implicated in the review of the Court since much of our laws in America are based on Judeo-Christian principles. The doctrine of separation of powers and the death penalty for murder have been rooted in such origins. The Supreme Court has addressed issues previously – such as Sunday closure laws – that reflect the government adopting or giving deference to religious principles.

    • Mark, the ruling that struck down blue laws did so on the grounds that legislation has to have a rational, secular purpose, and making businesses close on Sunday doesn’t.

      The language in this ruling about banning gay marriage at the Federal level having no rational purpose accords with this principle. The court was clearly troubled by the Feds over-ruling states on the grounds of “Judeo-Christian values”. The problem is not with the latter when they accord with general US values or some principle from them is in accord with government rationality. But they cannot *alone* justify legislation that otherwise seems invidious.

      • Actually, the McGowan versus Maryland opinion of the U.S. Supreme Court in 1961 did validate the Sunday closure laws since they had achieved a secular purpose, although their initial intent may have been religious in nature. However, I do agree that “blue laws” in general are deemed by U.S. courts to be unconstitutional and the McGowan holding was expressly re-affirmed in 2005 by the Supreme Court to strike down the display of the Ten Commandments at court facilities in Kentucky as the intent of the display was ruled to promote a religious purpose.

  2. DOMA Ruling One Christians Can Support
    As a minister ordained to preach and teach the Gospel, I support the Supreme Court ruling today invalidating the Defense of Marriage Act. Homosexuality is not a sin. It is a sin to discriminate — against gays, people of color, women, children, immigrants… It is a sin to exclude whereas Jesus welcomed. The Greatest Commandment is to love. Christians and other people of faith should welcome this decision even as we should work to undue the damage inflicted on the civil rights of Americans by the court’s decision yesterday to dismantle the heart of the Voting Rights Act. Truly, this Supreme Court has a very mixed record where civil rights are involved.

    – Rev. Chuck Currie, Minister, Sunnyside Church and University Park Church, Portland, Ore.

  3. I respectfully disagree with the view that DOMA’s underpinnings were the Judeo-Chrisitan religious views. There are other religions who equally believe that the definition of marriage is that which occurs between a man and a woman and that when the word “spouse” is used, it means the partner of the opposite sex.

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