07/14/2010 2:30 pm
POV
DOMA Is Unconstitutional: An Authoritative Opinion
Lawyer Brenda Feigen takes a close look at the federal Defense of Marriage Act ... and doesn't like what she sees.
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Even though I live in California, last week’s federal court decision on the constitutionality of the federal Defense of Marriage Act, known as DOMA, could forever change not only my life and that of my spouse, Joanne (to whom I was married two years ago, after being together for 16 years, when California allowed lesbians and gays the right to marry during a five-month window), but the lives of countless lesbians and gays throughout the nation. That horrific statute defined "marriage" as only the legal union between one man and one woman as husband and wife and the word "spouse" refers only to a person of the opposite sex who is a husband or wife. It is truly one of the worst pieces of legislation ever, not to mention that President Clinton, despite his courting of the gay and lesbian vote during his campaign, did not veto it, which he could have. If the case is appealed and upheld on appeal, we will be treated, as will all the same-sex marriages in this country, the same way a heterosexual married couple is – which we so are not now. My constitutional expertise was honed when I directed the Women’s Rights Project of the ACLU with (now Justice) Ruth Bader Ginsburg, and everything I fought for – against gender discrimination – is now coming into play with same-sex marriage and discrimination against lesbians and gays, in general.
Judge Joseph Tauro, in a case brought by seven same-sex couples and three survivors of same-sex spouses all married in Massachusetts, ruled that their marriages must be recognized by the U.S. government. Each of the couples had a different reason for wanting that recognition, ranging from the social security benefits to which they would be entitled if they were heterosexual couples to the right to file a joint federal tax return to the right to be awarded federal health and widowers’ benefits. In fact, as of 2004, there were 1,138 federal laws that tied benefits, protections, rights or responsibilities to marital status, none of which apply to same-sex married couples.
The first wonderful passage in the opinion was Judge Tauro’s recounting of the legislative history surrounding the passage of DOMA: "In the floor debate members of Congress repeatedly voiced their disapproval of homosexuality, calling it ‘immoral,’ ‘depraved,’ ‘unnatural,’ ‘based on perversion’ and ‘an attack upon God’s principles.’ They argued that marriage by gays and lesbians would ‘demean’ and ‘trivialize’ heterosexual marriage and might indeed be ‘the final blow to the American family.’" Indeed, one Representative Lipinski declared that "allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation." Not to be outdone, Sen. Jesse Helms added that "[Those opposed to DOMA] are demanding that homosexuality be considered just another lifestyle – these are people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle."
A brief primer on constitutional law and equal protection was given to us near the end of his decision, as Judge Tauro explains: "In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny … only to those laws that burden a fundamental right or target a suspect class." But, said Judge Tauro, the court need not go there "because DOMA fails to pass constitutional muster even under the [less exacting] … rational basis test … [T]here exists no fairly conceivable set of facts that could ground a rational relationship between DOMA and a legitimate government objective."
Judge Tauro then goes through the various "reasons" proffered by the defendants, i.e., the federal government, as to why DOMA must stand: Denying federal recognition of same-sex marriages might encourage responsible procreation. But, says the judge, medical, psychological and social welfare communities have all come to the consensus that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.
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If I remember what I learned in Seminary and in my life, Marriage is an act between TWO PEOPLE in the eyes of GOD, not the government.
I can’t understand how we’ve allowed the government so deeply into our private lives as to say who we can love or marry. They tax us to death, break their campaign promises, and throw us in jail if we decided against our employees we put into office decided what’s right or wrong. Who made them GOD.
They work for us, they’re supposed to abide by the majority of the people in their area, money, buying favors, helping this group and screwing over other groups seems to be the way of the American Gov’t.
Brenda I’m truly sorry that you have to go through this, it’s not fair and it’s not right, you have just as much right to love who you choose and marry who you love.
Brenda, we can’t help who we fall in love with, when we fall in love, it just happens, and it shouldn’t matter to anyone but the two of you. Society, if they’d only read the history books, there have been Gay Marriages, and couples through out history, all the way back to the roman era and before.
I’m a spiritual Christian, I don’t beleive in Religion, I find it more and more like the government, trying to control every aspect of our lives. I pray to one God and his Son, and NO MAN has the right or privilage to hear my confessions, that’s between me and my God, as stated in the Bible.
The heart wants what the heart wants, and I wish you all the happiness and love you deserve. Be true to yourself that’s the most important lesson I’ve learned in my 54 years. God Bless :)
Deni,
Nice post! A true love connnection goes beyond gender, race, culture or previous thoughts you have in life. Love is what it is, and I do believe any two people that are drawn and attracted to love each other does have divine intervention on some level in place also. I also believe at times a deceased spouse plays intervention into bringing a new partner into the life of the one they loved. Marraige if thought as a God/Love union and if you believe in a form of higher love regardless of the name it is unconditional rather than bigoted or bound by doctrine of mortal boundries. I could go further, but think I have said enough. :-)
Blessings!
I have two things to say to your ignorant butt:
1. Let thee without sin cast the first stone.
2. Those in glass houses should not throw stones.
HAY MRS ANSWER ME THIS: WHO MADE YOU GOD!!!!!!!!!!!!!!!!!!!
WHO GAVE YOU THE RIGHT TO JUDGE MY FAITH AND BELIEFS, LAST I HEARD OR SAW JESUS HASN’T RETURNED YET, SO LOOK IN THE MIRROR AND DON’T JUDGE, LET YE BE JUDGED.
mrs_lisakaye,
you have a right to your beliefs. They are yours. Nobody will take those away from you. Yet, I am sorry to spring this to you, but you are not GOD. You read the Bible. You learnt the Bible. You discuss the Bible as a human being, a fallible human being. The Bible is a great Book interpreted throughout the ages by human beings, sometimes well-meaning and possibly kind people, but still very much human. Fallible humans. Unless of course I missed somewhere in your post where God actually spoke to you and told you with no doubt that gays are sinners. In which case we should be having a different conversation.
I may have not studied the Bible as extensively as you, yet I remember there is a huge change form the Old and the New Testament. We go from a personal, emotional almost to the human level God to the story of Jesus. A guy who talked about loving your neighbor as yourself, about sharing and loving unconditionally. Even when our minds tells us hate, Jesus would tell us "follow your heart." I maybe wrong, as I have not gotten a chance to talk to Jesus directly yet, but this what I think Jesus would say of sinners.
You cannot judge that which you do not know. That is the real sin. Judgement towards a person whom you know nothing about comes from a painful place inside your own heart. You have no "obligation to at least try and prevent our Country from becoming a place where immorality is allowed". No such duty is required of you. The only duty you have is to figure out how you feel inside your own heart (where is the pain and the anger) and realize that targeting others will not help heal your own heart in the end.
And about those gay couples that are fighting to have the same rights heterosexual people have always had. They want to get married also so they can legally adopt, and they can have the resources to take care of all the "godly off-springs" nobody wants and other man/woman couples left for adoptions. I would say that is a pretty Godly thing to do.
Mrs. Lisakaye
I am a Christian and I have read the entire bible. I admit to struggling with many parts of it as well as being inspired and truly given wisdom from many more parts of it.
I have a couple questions for you: If God created marriage only for the purpose of godly offspring, would you suggest a law forbidding infertile people to marry? Should all people who have looked at themselves and decided they really don’t want to be parents be forbidden to marry? Should marriages be annulled if accident or illness leaves one of the parties unable to procreate? Really, the possibilities for "unbiblical" marriages using "godly offspring" as the only purpose for marriage are virtually endless.
Secondly, Yes I know the verses that proclaim homosexuality as a sin. I also know there are more verses dealing with untruthfulness as a sin. I have seen estimates that anywhere from 5%-20% of the population is homosexual. I have no idea of what the real number is, but as I personally am heterosexual, I at least know it’s less than 100% I submit to you, however, that 100% of the population is guilty of lying. I also submit that lies and dishonesty do far more to destroy marriage in this country or any other than the fact that some people fall in love with and wish to marry others of the same gender. So WHY OH WHY are so many "Christians" OBSESSED with stamping out homosexuality specifically. Why not be this concerned about lying? Just wondering …
This is crazy! Why would anyone be concerned about a relationship of love between any two consenting adults? Is it a lack of compassion or a lack of maturity that drive people to object so strongly to equal rights for everyone. I have been told that maturity enables you to see both sides of an issue without judgement.
Good luck in your fight. Many of us agree with you.