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If DOMA falls, what then?

Originally published at Faith Seeking Understanding. You can comment here or there.

I haven’t actually seem what the Supreme Court did with DOMA or Prop 8 yet, but as I wait, I’ve found people’s reactions to the impending news quite interesting. I’ve seen a lot of people sure it would mean a death-blow to western civilization, and those who think it is our Brown vs. Topeka moment. And of course those people who think striking down DOMA would be a great thing for gay people but wouldn’t affect the rest of us one whit. I’m not convinced.

Starting with the last point. One example of this is a post over at Slacktivist, which I disagreed with but never got around to blogging about. Gay marriage is in the courts, so of course some group of conservative religious “leaders” (in this case, the list of names almost made me nostalgic for the 1990s, when they actually had a little influence) must sign a statement about how wrong it is, how they will fight it to the death. And some progressive bloggers must come back saying that this bill doesn’t affect those leaders or the people they represent. Which is true in this case, I think. If DOMA is overruled it won’t make Bill Donahue gay-marry James Dobson, or any other man. And it won’t make any church either of them represent officiate or bless their wedding, and Id be highly surprised if they have to let their churches be used. I’ve heard scare stories of exceptions, but as far as I know they’ve all been situations where the church was already accepting money to regularly make their facilities open to the public (as in, contracts that guaranteed free access – not one-time rentals of the rec room).

If marriage were legalized – which, let’s be clear, striking down DOMA doesn’t do all by itself – it really will affect some people other than gays. Many of them are groups tied to religious organizations that the people who signed that statement might be interested in protecting. There are questions of whether businesses owned by people against gay marriage have a right to decline the business, or whether religious groups that work with the government to provide social services can refuse to work with gay couples if this violates their beliefs, without losing the government contracts. (I know this latter question became an issue after Illinois approved of gay civil unions with Catholic Charities adoption agencies.) Of course, the people signing this statement don’t run those flower shops, and while they might have an interest in those kinds of cases, it’s not like they would affect them directly.

And as I said, overturning DOMA doesn’t mean gay marriage is suddenly legal everywhere. I’m really and truly not a lawyer, so if anyone with more expertise wants to correct me, I’m happy to post an addendum. But as I understand it, if the courts overturn DOMA, it doesn’t automatically mean every state will allow gay marriage. My understanding is it will do two things. First, if you are legally married in a jurisdiction that allows it, you’ll get whatever benefits the federal government extends to gay couples. Even if you were legally married in NY state, if you weren’t heterosexual-married you couldn’t file federal taxes as married-filing-jointly or take advantage of the other tax benefits. (That was actually at the heart of the DOMA case, that it had cost the person at the heart of it significant $$$ in missed tax benefits.) This also probably opens up immigration rights based on marriage to married homosexuals, which is in many ways an even bigger point in its favor for me. The other point, and here I’m much less certain, is that if you marry in a state that allows gay marriage that marriage may have to be recognized in states that don’t have gay marriages. But I suspect that depends a lot on the state laws in question. Striking down DOMA certainly doesn’t mean you’ll be able to marry the same-gendered person you love in all fifty states.

So on some level, Slacktivist does have a point. Even if SCOTUS invalidates DOMA, it’s just not clear what it would make those people who signed the anti-gay marriage statement actually do. They say they won’t stand by, but as Slacktivist rightly points out there’s really not much else for them to do, because striking down DOMA wouldn’t actually do anything. There’s no requirement for them to act that they can refuse to do and then go to court over. But then Slacktivist goes a little further, and here’s where I very strongly disagreed. He says, “It’s [meaning gay marriage] fantastic for the people it affects, but the indignatories of the religious right are not among the people it affects.” Striking down DOMA may not force those signatories to act, but it sure as heck affects them. And truth be told, it affects me too. This is a good thing.

The government has decided to give certain legal privileges to people who it considers married. This includes things that only affect the people who choose to be married, like next of kin right to make medical decisions and presumptive custody of minor children if the other spouse dies as well as the right to third-party litigation (divorce) to help split any assets if the relationship ends. But it also includes things that do cost other people, materially. Marriage often has certain tax benefits like the inheritance tax law that drove the DOMA case. Married couples can inherit government pensions and military death benefits and other financial benefits. And all these must be paid for. Let me be perfectly clear: I believe humans are social animals and that many people flourish best when they have someone to build their life with. Maybe not everyone (I’m single and don’t feel like my life is incomplete). But I think it’s good we have a social institution of marriage that people can take part in, that lets them give each other legal authority over their lives, makes it easier for them to live their lives as we rather than you and me. But marriage does mean some material benefits especially in terms of taxes, which means other people are paying in less than they would otherwise. Which does seem to affect me at same level. So it makes sense that we don’t give those benefits to just any relationship or two adults in no particular relationship at all. When the state lets two people get married, at some level it seems to be saying: this relationship is valuable enough it outweighs the cost of the benefits we now let these two people claim.

And if that’s not a statement worthy of a government bureaucrat, I don’t know what it is. It’s dispassionate, wordy, and goes about in circles. But I hope you can understand what I mean.

For my entire adult life, perhaps up until today depending on how the court rules, my country’s government said the only kind of relationship that had that kind of worth was between a man and a woman. Usually people would talk about children, say marriage was really about providing a steady home for them. Fair enough, except we allow old people to get married when they’re long past the point of being able to have kids, and a whole host of other infertile or choosing-to-stay-childless people, and except for the fact that many gay people have kids in their life. So if you’re trying to explain why marriage should only be available to heterosexual couples, this argument doesn’t seem to do that – we let people without kids get married, and we forbid people who have the kids from getting married, too.

So I’ve heard a growing number of people talk about needing spouses who “complement” each other. Really, this argument was there all along, but it trades in ideas about men and women being essentially different so I get why the marriage = protecting the children argument being more attractive. You’re hearing more and more of it though as people become more aware of the fact that gay people have kids and actually make as good or bad of parents as anyone else. I said above that people are social animals and many do best when they have someone to build their life with. This argument takes that a step further and says that what they really need is a specific kind of person who complements and complete them. Men have certain kinds of strengths (courage, protection) and women have others (nurturing, empathy) and that both are better off when they have the other kind of person to complement them. Now, I do believe the best relationships involve people whose differences complement each other, but this argument is saying more than that. It’s saying that women are different from men in a way that a woman can complement a man in a way she just couldn’t complement another woman – because there are all these ways that women and men are different and need each other, and since another woman is like you in those ways, you’re just not going to be able to fill each others’ needs. It’s not necessarily sexist in the men are better than women way (both need each other), but it has been used to support a lot of policies with sexist outcomes, like a traditional division of labor and the idea that women don’t have the backbone to make hard decisions required of presidents and CEOs.

More to the point, though: separate but equal didn’t work in Brown v. Topeka, and it doesn’t work now. Also, it’s just not true, at least in my experience. I have many psychological characteristics and probably even some physical ones you see more often in men than women. If I were physically attracted to women, I’m sure I could find a woman with the same personality traits that attract me to the men I’ve wanted to date. Humor. Intelligence, Empathy. Idealism. Honesty. Passion. Bonus points for a working knowledge of Sindarin. These are not gender-specific traits.

This is why a full-fledged acknowledgment of marriage equality would affect me. It’s why I was too excited to sleep the night after NY state passed  its marriage bill, and why I literally sat down and cried after North Carolina made gay marriage unconstitutional. Because when you say that only heterosexual marriage is legitimate, deserves the financial benefits and social recognition that goes along with marriage, what you’re really saying is there’s something about being a woman that means I need a man to complete me. And ditto for men – that they will never be as satisfied and complete if they marry another man as if they married a woman. But either way, you’re saying there’s something about gender that defines who you are, to the point that it gets to decide who you will form the most significant relationship of your life with. And to quote Jar-Jar binks, that smells stinkowith. And when SCOTUS says the law of the land doesn’t mean we can grant or deny benefits on that basis? Much less stinkowith.

I think conservatives and particular the Religious Right gets this better than people who say gay marriage only affects gays. If gays really can marry, that means two people don’t have to “complement” each other for their marriage to be perfectly valid. You can still base your marriage around the idea that men and women are essentially different, but you don’t have to. It is now optional. So even if we now had gay marriage across the law that wouldn’t undo anyone’s marriage. But I do think it changes what it means to be married. Marriage can still be built around those traditional gender roles, but it is now optional. And if two men can have a marriage where they’re both dudes so there’s no way to have this complementing roles thing and it still be marriage, couldn’t a man and woman build a marriage that was more equitable, more egalitarian, and that still count as marriage? They really could.

I think if the court strikes down DOMA, it will be a good thing. Mostly because it will affect homosexual people in a good way, but also because decisions like it also change how my society and the law view gender. Meaning how they view me. But at the end of the day, there’s a limit to the importance of what we’re talking about. Here are some things it won’t cause:

gay-marriage-pie-chart-jpg

If you are encouraged by what happens today, great! Take that encouragement, enjoy a little celebration, and store up that good feeling to fight on the many, many other things we need to work on. (Like dealing with the problems of yesterday’s Voting Rights Acts, and the many, many many MANY ways our elections were screwed up already…) And if you didn’t like the outcome… well, remember that while marriage is important, it’s really not the sum total of society.

This decision will impact people, gay and straight alike, but the war is not won or lost based on what those nine justices decide. Really, they’re just deciding whether certain people get access to certain legal rights and policy benefits from the government. Russia is not invading, there are no Klingons off the starboard bow. (Scrape them off, Jim!) Even if DOMA is struck down, even if we suddenly had gay marriage available in all fifty states and all 200+ countries, this wouldn’t mean the death of truth let alone justice and the American way of life, it doesn’t change an eternal sacrament – it just redefines the always-temporal, always-changing, entirely-human legal codes and policy framework we live under.

*****************

P.S. – On a simpler, more personal note I have seen the impact of homophobia in my own life. A big part of that comes from the idea that homosexual people are necessarily more sexual – they’re the men walking around in speedos at gay pride parade rather than the two dads helping their children do their homework and cleaning the dishes after dinner. They are a they rather than an us. I know marriage equality isn’t a magic bullet, but I hope that for people my age, when we start to see homosexual people as normal, like-us even boring adults who just want to structure their lives in the right way, less people will have to survive (or fail to survive) the kind of homophobia I’ve seen play out. I don’t talk much about that angle because I’m not really that good with the personal, but it seemed wrong not to at least mention it.

P.P.S.- While I was editing this post, I learned that the court ruled and DOMA IS DEAD! or on life support at least – the Court decided a major part of it was unconstitutional.

But since I started writing this post before I knew that, I decided against changing this post. It’s more than just a grammar change – I think a lot of my thoughts are embedded in the hope that things might happen a certain way. But really: *points to Snoopy*

P.P.P.S. – Interesting story connected to the DOMA rulings, here’s one man who did have his world changed by today’s ruling. Minutes After Supreme Court Strikes Down DOMA, Immigration Judge Stops Deportation Of Married Gay Man Some of us are impacted more than others – but for most of us, this is neither the beginning of a perfectly just society or Armageddon, or even a world where any two adults can marry regardless of their gender</a>.

And now that this post is rivaling one of Gandalf’s letters, I’ll officially sign off.

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