DOMA's Dead, Long Live....What?

The Leave it to Beaver Cleaver Family

 A few nights ago we had dinner with some of our extended family--a sister-in-law of my two adopted nuyorican children, along with her her half-sister, whose mother is Colombian.  This is just the beginning of a complicated skein of relations and social origins that make up my extended family featuring numerous second (or more) marriages, step and half-siblings, adoptions, mixed couples, and so on.  There is not much "normal" in it, if by "normal" we mean the mythical US family made up of a nuclear couple in its one and only marriage, with two children, all the same race or ethnicity, all straight.  Now, we know that this is not always the typical family, but it is the norm--we can see it in the TV families of the 1950s and 60s (think Leave it to Beaver).  We can see this norm invoked in the non-traditional families that began popping up in the 1970s, ones that were edgy (One Day at a Time), comedic (Brady Bunch), or quaintly cute (The Courtship of Eddy's Father). They were--or tried to be--edgy, comedic, or cute precisely because they were not normal families.

Same-sex couple with two adopted children.
From: http://www.huffingtonpost.com/2013/06/13/
gay-family-photos-project_n_3436299.html

Though less powerful today--this norm still holds a sway over many Americans.  Witness the anger and grief over the Supreme Court's recent rulings dooming the 1996 Defense of Marriage Act (DOMA) and California's Proposition 8.  A narrow majority, 5-4, declared DOMA unconstitutional.  Another 5-4 decision, with a different mix of judges, refused on procedural grounds to deliberate a suit regarding California's Prop 8, a ban on same-sex marriage.  This turned the case back to a lower court that had already ruled against the ban.  In effect, this legalized same-sex marriage in California (NPR story).

The narrow splits in the Supreme Court reflect the seeming polarization of the American people on the matter LGBT issues and their connection to marriage and family.  A recent Pew Survey finds that a narrow 51% majority supports the legalization of same-sex marriage.  But I said "seeming" because this percentage shot up dramatically from 32% in 2003.  Moreover, 2/3 of Americans support the idea of civil unions for same-sex couples, and 60% agree that "society should accept homosexuality." So there's a social sea change out there that the Court does not appear to reflect regarding the issue of homosexuality.

In a harsh dissent, Justice Scalia called the ruling a "judicial distortion," but what really irked him was the subtext he saw in it.  The ruling painted pro-DOMA people as "hateful," as an "enemy of human decency," as "monsters" (Politico).  I didn't read the entire 77 page decision, but summaries (e.g. Huffington Post) of the decision can be boiled down to two issues.  The majority found that DOMA violated the the Fifth Amendment's "due process" clause, and that it unjustifiably denied a class of people equal standing before the law.  That is unconstitutional discrimination (it's not surprising that the decision cited the 1967 Loving v. Virginia case that struck down a state law banning inter-racial marriage--Washington Post).

Justice Antonio Scalia
http://www.oyez.org/justices/antonin_scalia

Scalia came up with those terms characterizing those opposed to full equality for homosexuals, exaggerating the language of his judicial opponents.  I think he did so in order to make the point that he should be allowed to be morally comfortable with discrimination.  It is not hateful or indecent to treat LGBT folks as second-class citizens, and how dare you suggest that...

Other reactions were equally visceral.  Mike Huckabee, former governor and presidential contender and current Fox commentator, tweeted "Jesus wept," a curious equation of Lazarus and DOMA (what Christ-like figure will appear to call to DOMA "Come forth!"?).  American Family Association radio host, Bryan Fischer, trotted out the tired saw that the ruling would lead to a sexapocalypse: "The DOMA ruling has now made the normalization of polygamy, pedophilia, incest and bestiality inevitable. Matter of time."  More sedate, the Conference of US Catholic Bishops called it a "tragic day for marriage"  (Tweets at Religious News).  Or you can go over to Rightwingwatch.org and wade through a slew of all sorts of dire predictions and accusations, starting with Focus on the Family James Dobson, who claims that the DOMA ruling "threaten[s] the entire superstructure of society" (Superstructure? Apparently, he doesn't know what the term means, but I prefer to think he's channeling Marx...).

I could go on like this, but I'll just get more sarcastic and snarky.  On this issue there's a gulf between a sizable minority and slim majority of Americans.  Those opposed to full equality for homosexuals depict their discriminatory position as moral or legal while those in favor of that equality see it as immoral or illegal.  There's no easy way over this gulf.  Every advance of equality has involved failed efforts to reason with one another, and ensuing conflict and bitterness.  We'll just have to endure it, and know that people in a generation or two--just as we do now looking back on the civil rights movements--will shake their heads at us, wondering how we could have been so obdurate

By the way--this decision has had immediate consequences here in Michigan, where a

...federal judge has ordered Michigan to stop enforcing a law that has barred community colleges and many other government agencies (though not universities) from providing any benefits to the same-sex partners of employees (Inside Higher Education).

This is perhaps a sign that all states that have passed laws designed to deny government benefits to same-sex couples--that is, trying to DOMA them at the local level--will face legal challenges in the near future.