KC Johnson

April 25: Marriage Equality, Family, & Children as a Political Issue

California–pro-Prop 8 ad:

anti-Prop 8 ad:

trailer for “Question One” (behind-the-scenes documentary on 2009 referendum campaign on Maine’s same-sex marriage law):

Marc Mutty, campaign manager for the Yes on 1 (anti-gay marriage side) discussing advertising tactics:


Windsor v. United States

2nd circuit (court of appeals for CT, VT, NY)

(decision, which struck down DOMA Section 3, was appealed and will be decided by Supreme Court this June)

Plaintiff Edith Windsor sued as surviving spouse of a same-sex couple that was married in Canada in 2007 and was resident in New York at the time of her spouse’s death in 2009. Windsor was denied the benefit of the spousal deduction for federal estate taxes solely because Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, defines the words “marriage” and “spouse” in federal law in a way that bars the Internal Revenue Service from recognizing Windsor as a spouse or the couple as married. The text of § 3 is as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage”  means only a legal union between one man and one woman as husband and wife, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

At issue is Windsor’s claim for a refund in the amount of $363,053, which turns on the constitutionality of that section of federal law…

BLAG [the House Bipartisan Legal Advisory group, which stood in to defend DOMA Section 3 after the Obama administration declined to do so] advances two primary arguments for why Congress enacted DOMA. First, it cites “unique federal interests,” which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution.” Second, BLAG argues that Congress enacted the statute to encourage “responsible procreation.”…

To the extent that there has ever been “uniform” or “consistent” rule in federal law concerning marriage, it is that marriage is “a virtually exclusive province of the States.”… Moreover, DOMA’s sweep arguably creates more discord and anomaly than uniformity, as many amici observe. Because DOMA defined only a single aspect of domestic relations law, it left standing all other inconsistencies in the laws of the states, such as minimum age, consanguinity, divorce, and paternity…

Finally, BLAG presents three related reasons why DOMA advances the goals of “responsible childrearing”: DOMA subsidizes procreation because only opposite-sex couples can procreate “naturally”; DOMA subsidizes biological parenting (for more or less the same reason); and DOMA facilitates the optimal parenting arrangement of a mother and a father. We agree that promotion of procreation can be an important government objective. But we do not see how DOMA is substantially related to it.

All three proffered rationales have the same defect: they are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way….

Our straightforward legal analysis side-steps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status — however fundamental — and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

dissent, Judge Straub, arguing that DOMA Section 3 should be upheld:

[In 1996, when it passed the law,] The Congress had the benefit of advice from the Department of Justice that DOMA is constitutional. The Congress decided to codify what had always been implicit in federal law. The history of federal legislation in respect of the meaning of marriage or spouse was never even suggested to mean anything other than the lawful union of one man and one woman for all federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress explicitly sought to recognize for federal purposes the significance of our historical understanding of a mainstream value, joining the biological component of the marriage relationship to the legal responsibility of rearing the off-spring of that union. The Congress referenced its intention to sanction, for federal purposes, society’s desire to approve the man and woman long term union as the ideal by which to beget and rear children…

The Congress was uniform and consistent. And, it chose not to rush ahead with a redefinition at a time when all the states utilized the traditional definition of marriage. It chose to let the issue evolve within American society. The Congress accomplished its task in a manner which continues to respect the principle of federalism. The states remain free to define marriage as they choose, pursuant to DOMA. And, forty-one of our states continue to define marriage as DOMA does….

At bottom, the issue here is marriage at the federal level for federal purposes, and not other legitimate interests. The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity. Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President. It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress…

The interest in recognizing the connections between marriage and childrearing by biological parents can be broken down into several components. First, DOMA expresses Congressional recognition that “responsible begetting and rearing of new generations is of fundamental importance to civil society.” Because the state has an interest in children, the state is thus also interested in preventing “irresponsible procreation,” a phenomenon implicated exclusively by heterosexuals. (BLAG Br. at 49.) Because of these legitimate interests, reserving federal marriage rights to opposite-sex couples “protect[s] civil society,” because without the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to unstable and unhealthy families. Marriage thus plays the important role of “channeling opposite-se[x] sexual desires” which, in the absence of marriage, would result in unstable relationships, which have been documented to be harmful to children…

Another component of the procreation and childrearing rationale for restricting federal rights to opposite-sex marriage is the Congressional desire to have children raised in families with only biological mothers and fathers, which same-sex couples cannot provide…

Marriage today, according to the federal government, means what it has always meant — a holy union, essential to the survival of the species, between a man and a woman, the principal purpose of which is to encourage responsible child rearing…

Whether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process.

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