January 21 -- February 8, 2004
Rumor had it that the President would use the State of the Union address to promote the $1.5 billion plan for helping people learn to keep their marriages together. That line didn't come up, but marriage figured in the speech twice: once when the President encouraged Congress to make the marriage penalty fix permanent, and then at the end when he spent a paragraph on the Defense of Marriage Act.
No one who's been a married taxpayer is likely to be a fan of the marriage penalty. It's a relic of the days when one-earner households were the norm, and I won't cry if it dies a quiet death. I might have preferred to hear Bush urge Congress to do something about the impending train wreck called the Alternative Minimum Tax (be afraid; be very afraid) but keeping the marriage penalty in its coffin is still worth the while.
But then there's the Defense of Marriage Act.
Let's start with something I hope is obvious. Conservatives are right when they say that marriage is a bedrock institution. Every society has just about the strongest interest possible in the rearing of children. Of course children can be raised outside of marriage -- something I know from 10 years of being a single parent. But two parents are usually better than one, and for all its difficulties, marriage makes it harder for people just to walk away. I'm willing to grant that there's a case to be made for government to get into the business of making marriages stronger, and I'm not going to complain about reasonable programs meant to do just that.
Is the Defense of Marriage Act one of those programs? It's hard to see how. Start with the obvious question: are there any straight couples who would decide not to get married just because gay people could marry too? Maybe the answer is yes, but it doesn't make much sense.
In any case, I'm afraid that if we parse what the President had to say, it was a bit of a hash. He started by remarking "I believe we should respect individuals as we take a principled stand for one of the most fundamental, enduring institutions of our civilization." I'm assuming the bit about respecting individuals was a plea for tolerance; I don't believe the President is a bigot or a homophobe, and I think he means it when he says that "each individual has dignity and value in God's sight. " Still, it was a bit jarring to see the line about respecting individuals followed by a reminder that Congress had taken its stand when it passed the DOMA. Last time I checked, Congress wasn't an individual, and I don't see how the DOMA really respects any individuals at all.
The next line was partly a rhetorical sleight of hand: According to the President, the DOMA "protects marriage under federal law as the union of a man and a woman, and declares that one state may not redefine marriage for other states." By using "protects" where it should simply have said "defines", that first clause begs the question. How, one wants to know, does this definition protect anything or anybody?
On the matter of one state defining marriage for another, the issues are tricky. The "full faith and credit" clause of the constitution (Article IV, section 1) says that each state has to respect the laws, records and court decisions of other states. If your birth certificate is from Massachusetts, they have to accept it in Montana. If you were found innocent in West Virginia, you're not a guilty in Wyoming. And if you were married in Delaware, your spouse is your spouse in the Dakotas. Except, of course, if your state allows same-sex marriage.
Actually it's more complicated than that. If state X allows 14-year-olds to marry, State Y doesn't have to recognize the union if they're still underage when they set up housekeeping across the border, or so I've heard a smart lawyer say. The way the law has evolved, it seems that this is constitutional, and many of us might say it's a good thing that it is.
In any case, conservatives tend to favor strict interpretation of the constitution. They argue that if we try to read the framer's minds, or if we think we need to update old values for a new day, constitutional interpretation turns into an inkblot test. The underlying issue here isn't silly, though whether "strict constructionism" is the right way to deal with it is another matter. However, if we side with the conservatives here, it's hard to see how the DOMA could possibly be constitutional. That marriage in Nebraska is still marriage in New York. seems to follow from the plain meaning of the text. There is a line that defenders of DOMA can take. They can say that the Framers never had anything remotely like gay marriage in mind when they wrote Article IV. That is no doubt true, and it may be the basis for a cogent argument. But it's an argument that conservatives offer at their peril.
The President tries to finesse the question by attacking "activist" judges. But let's slow down. The judges he's talking about were interpreting their state constitutions. He hectors them for ignoring the "will of the people", but constitutional guarantees are a check on unbridled popular will. That's part of the idea of a constitutional democracy. And for all the President said, these "activist" judges may have been able to justify their findings on strict constructionist readings of their states' constitutions.
But suppose not. (I'm skeptical that the Massachusetts court was forced to its conclusion by the plain meaning of the state constitution.) The President's rationale still won't wash. What if a state expands the definition of marriage by deliberate legislation? No activist judges there. But DOMA would still rule out recognizing the state's new law.
A constitutional amendment could "cure" all that, but I think there's a better way, legally tricky though it may be.
There's something unsettling in the idea that a decision -- legislative or otherwise -- in one state could change a fundamental institution overnight for everyone else in the country. What's unsettling here has nothing in particular to do with gay marriage, to which I have no objections. It's an admittedly conservative instinct that fundamental change is generally better if made incrementally. There are exceptions, and they're important ones. They have to do with fundamental rights, and that's why this case is so tricky. But marriage is complicated because it includes issues about basic rights and symbolic issues, though highly non-trivial ones.
Civil unions solve many of the problems of fundamental rights. They can deal with questions of inheritance, property, hospital visitation rights and the like. The fact that a person's life partner can be turned away from the hospital room door because she isn't "family" is shockingly brutal, but it calls for an institutional remedy. Civil unions are a plausible stopgap. As for marriage itself, the President's words point out part of the problem. He talked about defending the "sanctity" of marriage, and that word is the key to the puzzle.
As most Americans understand marriage, it isn't just a legal union. It has a much larger symbolic dimension and the word "sanctity" captures part of the ideal. By times I've found it interesting to hear what long-time live-together couples say when they get married, sometimes for what started out as reasons of convenience. They find themselves caught by surprise, moved by the magnitude of what they do. This kind of sanctity is bigger than religion. Our decisions can have depths whether we're believers or not. But sanctity isn't something we can simply create by fiat.
What I'd like to see happen is this. I'd like to see civil unions become commonplace as a way of protecting some very important rights. But I'd also like to see state-sanctioned gay marriage spread at its own pace, even while the DOMA stays in force. I predict that people would get used to it fairly quickly -- by historical measure, even if not by the measure of TV news cycles. It would allow the idea of marriage's sanctity to spread organically to same-sex marriage, which is ultimately the only way it can. My guess is that in not so many years, life itself would overtake the DOMA, turning it into the anachronism it richly deserves to be.