Sunday, June 30, 2013

What Does It Mean: DOMA Gutting

was my birthday, and some very momentous things happened that had a very real effect on a lot of people, but, like my birthday, it had absolutely no affect of most folks.

I'm talking, of course, about the SCOTUS opinions published that day. Centering around Proposition 8 in California and the definitions of ‘marriage’ and ‘spouse’ provided by the Defense of Mariage Act (DOMA).

Of pertinence to many of the people of the State of California is Hollingsworth v. Perry (Slip), where the court's opinion indirectly allowed for the resumption of same-sex marriage in the State of California. This opinion has absolutely zero direct effect on people outside that state, and only some indirect effect, if you happen to have friends or family in California living or seeking a same-sex marriage (which, or purposes of simplicity, I will consider such effects so insignificant as to be none at all for purposes of this post).

Now, the other opinion slip published by SCOTUS that day involved federal law and had an area of effect equal to that of these united States and all US territories, provinces, and jurisdictional areas. However, just because you are in the area of effect does not mean that does not mean you were affected by the courts opinion. If you want to get extremely technical, the court's opinion does not directly effect the people of five states (Alaska, Colorado, Florida, North Dakota, and Pennsylvania) which have, either through statute or constitutional amendment, contain similar enough definitions to those defined in the court-struck section of DOMA.

Lets get into that. The courts opinion in United States v. Windsor (Slip) centered around §3 of DOMA, which provided a definition of marriage as only a legal union between one man and one woman as husband and wife and spouse as only to a person of the opposite sex who is a husband or a wife. for all federal purposes (such as taxation and benefits). The case arose because Edith Windsor, a resident of the State of New York, who had been, according to the state, legally married to the late Thea Spyer, sought the federal estate tax exemption for surviving spouses. However, though the State of New York recognized their marriage, the federal government, using the definition provided by §3 of DOMA, did not. It was the courts opinion that §3 was unconstitutional (and additionally ordered the Tresuary to refund the tax, paid by Windsor, with interest).

So, how does this effect those of us that are not Ms. Windsor? For the most part, it does not, at least directly. If you are in one of the five states I mentioned above, it does not at all. Those states all define marriage using the phrases ‘one man’ and ‘one woman’. The courts opinion only strikes a federal definition which did not exist prior to DOMA back into non-existence, relying of the state definitions once again. So who does it impact in the remaining states? Well, perhaps I should continue discussing who it doesn't, or, rather, who it shouldn't impact.

If you believe marriage is between one man and one woman, SCOTUS striking DOMA §3 should have zero real effect on you. You lose nothing, you forfeit nothing, you gain nothing, you are not being forced to do anything. I have seen comments from some people who actually believe that because of this opinion, the federal government was going to start forcing clergymen to officiate "gay marriages". This belief is so asinine that it boggles my mind. Officiating a marriage service is just that, a service provided by an individual, one that they can turn down if they wish, and one that is not, technically, required. Aside from that, I don't think I know a single person who would request such a service from someone that doesn't believe in the marriage the are beings asked to officiate.

Now, who does it affect? If you live in a state that allows same-sex marriage, are currently, and wish to take advantage of marriage privileges at the federal level (once again, taxes and benefits), this this impacts you directly. [The following are things that should be the case, but please, do not take it as tax advice.] You may now, legally, file your federal tax return with a Married status. You may apply for spousal exemption when it comes to estate taxes at the time of your spouses's death. Pretty much, whatever different-sex married folks do when it comes to legal stuff and the federal government.

So, what about a same-sex couple that was married in a place that recognizes your marriage, then moves to a place that does not? Well, the ball is still in the air for you. This was actually brought up in one of the dissenting opinion. One thing the DOMA §3 did accomplish was to make this case very clear cut. Now that that is out, it will likely take another case going before the court to set a precedent.

Now for the fun part, the proverbial ‘slippery slope.’ What kinds of things could come about, now that the union has a whole has no single definition of marriage and must rely solely upon the definitions used by its member states? Many of the ideas people put forth are the same ones put forth after Lawrence v. Texas exactly ten years to the day, earlier. This case was in fact one of those ideas &em; not all ideas on such ‘slippery slopes’ are negative things to all people.

For a good view of the ‘slope’, I look to this tweet (link) from radio talk show host Bryan Fischer: The DOMA ruling has now made the normalization of polygamy, pedophilia, incest and bestiality inevitable. Matter of time. This is just a grab bag of goodies, I will address these ‘inevitable’ items in reverse order, as, to me, that seems the easiest.

Beastiality. I fail to see the connection between United States v. Windsor and beastiality; at least Lawrence v. Texas was a case centered around sexual acts. I can't see any conditions to which someone would be applying for a federal benefit that relates to sexual encounters with animals, no place or reason for the federal government to hold any stance on the issue. Without individual taxes and specific welfare at the federal level, there wouldn't even be a place or reason for the federal government to have anything to do with marriage.

Incest. At least this one I can relate to the case, if talking about incestual marriage, rather than incestual sexual acts. Incestual marriage is already possible in many states, under various circumstances and conditions (though most states prohibit 3rd degree of kinship and lower, many 4th and lower). It is still not likely something that will become a noticeable segment of society outside of sensationalized media. However, unless something like DOMA arrises again prohibiting federal recognition of such, it falls to the states to define what marriages are legal and which are not.

Pedophilia. Child marriage is also at least relatable to the case, though only barely. Once again, we look to the individual states to determine what is a legal marriage. Different states have different laws concerning the marriage of minors. If a state says the marriage is legal, it's legal; but I don't see any states allowing the marriage of pre-teens anytime soon, or because of United States v. Windsor.

Polygamy. The only ‘inevitable’ item on Mr Fischer's list directly affected by United States v. Windsor. The one I feel, and hope, has the best chance of coming to pass. As DOMA §3 defined marriage as being between one man and one woman (emphasis added), it restricted a marriage to being between only two individuals. As I mentioned before, five states in the union also define marriage in such a way, most, if not all, others have other specific restrictions against polygamy or bigamy (two separate things). Though now, if a state does decide to recognize polygamous marriages, those same marriages will be recognized at the federal level as well. I could easily use this a launching point into a polygamy legalization post, I think I will keep to the DOMA topic and save that post for another time.

In summary, the vast majority of the vocal complainers about the gutting of DOMA have no leg to stand on. They are in no way injured by such a decision, it is just uncomfortable for them. The decision forces no person to do anything they do not wish to, and provides the rights, privileges and freedoms afforded married couples to all such in any state which recognizes the marriage.

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