Another breakthrough manifested last week. While the Obama administration had been taking the stand for 1996’s Defense of Marriage Act, Attorney General Eric Holder announced Feb. 23 that the Department of Justice would stop defending the act in court. Further stories credit the turnabout to a personal conversion of the president, who became convinced that Section 3 of the Act was unconstitutional. That portion defines marriage for the federal government as a relationship between strictly one man and one woman.
We commend the decision by the president to finally fulfill his election-night promise to be a leader for all Americans, not just her segmented red states, blue states or heterosexual citizens. It took moral courage to wrest control of the ship of state and steer it in a brighter direction, especially against the protestations of fellow sailors mumbling ominous warnings about an angry God that they have teased from a Bronze-age text.
This does not mean the Act will die immediately; Congress still has the option of obtaining outside counsel, or allowing others to defend the indefensible in their stead. But it is a big step toward progress, and it is just one more sign of the sea change in public opinion.
What was Congress really trying to achieve with an act whose express aim was to "defend marriage"? In our reading of the Constitution, nothing jumps out as allowing the state to regulate and define an immensely private and traditionally religious institution. If Congress was really interested in defending marriage, then surely its members would have gone beyond simply excluding eager gays and lesbians from participating. They would also have wanted to goat cold-footed heterosexuals into its velvety graces. Representatives and senators would have reached across the aisle to prohibit quickie divorce, streamline marriage license applications and subsidize personal ads and engagement rings.
None of those things happened. Congress did not stop at barring homosexuals from equal protection under the law to defend marriage. No, it was legally recognized heterosexism that they sought to defend.
And did marriage itself ever need defending? It’s been around as a way of organizing families since prehistory. That’s a long time; surely 1996 did not see her as a damsel in distress saved from a dastardly demise by the likes of Newt Gingrich. Paradoxically, would homosexuals who want nothing more than join in its coverage have done her in? The logic of marriage’s "defenders" does not hold even a trickle of condensation, much less any significant volume of water. To borrow a line from Antonin Scalia, who would undoubtedly disagree with our conclusions: the argument for marriage defense is so transparently false that to employ it demeans the institution of the national legislature.
Allow us to call a spade a spade—discrimination by any other name is just as bitter. Thus the stricter standard of scrutiny Obama is now advocating courts to apply to the Act.
Furthermore, as free individuals organized under the Constitution, not by a deficit of alternatives, but because we really profess to believe in it as our social contract, we all should be offended that the state would implicitly favor one form of intimate relationship over another. Why not let a thousand flowers bloom and allow people to organize their passions in whatever creative, consensual scheme they choose? If the First Amendment protects our minds from government intrusion, and the right to privacy our bodies from the same, then surely our right to love, which rests sublimely in both places, ought to be paramount. Human affection and its romantic expression is not the province of presidencies, speakerships and bureaucracies; those constructed institutions cannot be tousled by the winds of passion, nor can they dig the trenches of grief. Those are the labors of humanity, done by each man on his own. We take love where we can find it, drink the champagne of emotions and straddle the double helix. So, what man has brought together let no God cast asunder.