Like many of you, I’m sure, I was at first not at all sure what to make of the announcement President Obama and Attorney General Holder made yesterday to the effect that the federal government will no longer defend the Defense of Marriage act that Congress voted into law in 1996. That’s how it works? The president or his attorney general just decide to ignore an Act of Congress that they find personally unappealing or objectionable? Can I ignore laws that don’t appeal to me? (Don’t bother answering that one.) Or is something else afoot here, something that I didn’t fully understand when I read the article in the paper Wednesday on the plane home from our seventy-two fabulous hours in Key West? As I considered the matter more carefully, in fact, it struck me that that too could well be the case.
To understand what happened on Wednesday, you need to know about something called the Full Faith and Credit Clause of the Constitution, also known as Article IV, Section 1. Simply put, the clause requires each of the states to recognize the "public acts, records, and judicial proceedings" of any of the other states. This has not traditionally been a source of much controversy. A woman gets divorced in Idaho, then is still considered a divorced person when she moves to Alabama. How could that possibly be controversial? It never was, but then, as it became clear that some states in the union were going to permit same-sex couples to marry, the Full Faith and Credit Clause went from being a pareve administrative matter of interest only to students of constitutional law to being at the center of a huge brouhaha poised to evolve quickly into a major national debate. Were states that specifically did not permit same-sex marriage going to be obliged under the Full Faith and Credit Clause not only to recognize same-sex marriages performed legally in other states as valid but also to grant the parties to those marriages the same benefits for which they would qualify if they were in male-female marriages? It sounded that way to many, and so Congress voted into law the Defense of Marriage Act which decreed that no state needed to consider same-sex marriages in other states as legitimate or legally consequential. Equally meaningfully, the Defense of Marriage Act (sometimes called by the acronym DOMA) also forbids the federal government from acknowledging the legal reality of same-sex marriages by formally defining marriage as the union of one man and one woman. Readers inclined to dismiss this as solely a philosophical or intellectual issue need to reconsider that approach: in 2003, the General Accounting Office counted over eleven hundred benefits, rights, and privileges that are either fully contingent on marital status or in which marital status is a factor, and that makes this into a very big deal for a large number of citizens eager to be treated equitably and fairly.
Clearly, it is no one’s best interests for it not to be clear whether or not a citizen is considered married in the state in which he or she lives. In its own way, the DOMA was supposed to speak to that issue by granting the same right to states to determine who is married that the federal government simultaneously arrogated to itself. So the real question is not whether it serves anyone’s interests for the marital status of citizens to be unclear, but whether DOMA solved the problem in a way that did not by its nature trample on the civil rights of gay citizens to be treated equally under the law, the single most basic civil right of any citizen in a democratic state.
In the United States, only Connecticut, Massachusetts, Iowa, Hawaii, Vermont, New Hampshire, and the District of Columbia permit same-sex marriage. Some other states, like our own state, recognize same-sex marriages that take place in states where they are permitted just as they recognize all out-of-state marriages. Still other states recognize such marriages as civil unions or domestic partnerships without calling them marriages. On the other side of the ledger, thirteen states, not content merely with not allowing same-sex unions, have actually enacted statutory bans forbidding such marriages from taking place. And more than half the states in the Union have enacted constitutional amendments formally defining marriage as the union of one man and one woman, legislation presumably intended to guarantee that, whatever legal recognition same-sex unions eventually acquire, those unions will not be called “marriages.”
It was into this complicated situation that the attorney general and the president waded earlier this week. In a six-page letter to the speaker of the House of Representatives, the attorney general basically said that he and the president have concluded that the third section of the DOMA, the one defining marriage as the legal union of one man and one woman, is unconstitutional and that the current administration, lacking the power to repeal an Act of Congress, would simply no longer defend the statute in court. More specifically, the attorney general’s letter justified this decision by noting the administration’s opinion that gay people meet the criteria requiring the government to scrutinize legislation passed in their regard to guarantee that they are not being discriminated against. (The four requirements are that the group in question have suffered discrimination in the past, that the members of the group exhibit immutable distinguishing characteristics, that the group be a minority, and that the characteristics that define membership in the group be unrelated to its members’ ability to contribute to society or to perform the duties of citizens.) This is the part I think most citizens like myself did not fully understand when the story first broke: that the job of the attorney general and the Department of Justice specifically is to take an “affirmative position on the matter of scrutiny,” when it appears that citizens rights are being unjustly or unreasonably curtailed by discriminatory practices or legislation.
The question of whether same-sex marriages are a good or a bad thing for society is not really at the heart of the matter here and what the administration did on Wednesday should not be taken as an endorsement of same-sex marriage. The president himself has repeatedly spoken out in favor of establishing a kind of civil union that would grant same-sex couples the same advantages as male-female couples but without using the loaded term “marriage” to describe their union. Whether he will stick to that or not, who knows? He himself has referred to his opinions on the issue as “evolving,” but without describing the course of their ongoing evolution too clearly. So the last word on the matter is still a very long way from being written. But the attorney general’s letter of earlier this week addressed a different question entirely: whether gay citizens do or do not meet the four-fold set of criteria listed above that would require the attorney general to subject legislation in their regard to scrutiny with respect to the single question of whether any specific law is or is not discriminatory. The president thinks that gay people qualify. After reading the list of criteria myself, I don’t really see how anyone could argue otherwise.
As a rabbi, I am asked regularly how I feel about the issue of same-sex marriage itself. In my opinion, the heart of the problem rests in the concept of there being civil marriage in the first place. A religious institution at heart, marriage should be available to citizens who wish to embrace the concept as it exists in the context of their own religious traditions. In other words, Catholic citizens should be free to marry under canon law in Catholic churches. Muslims should be free to marry according to the laws of Islam in our country’s mosques. Jewish citizens should be free to marry in the synagogues with which they choose to affiliate and to be married in those synagogues by the rabbis who serve them as their spiritual leaders. Americans who are not inclined to affiliate with religious institutions should have the possibility of entering into civil unions with other citizens without respect for the criteria that would apply if the state government in question were a religious institution. In other words, as long as there are secular benefits to be had by living in legally-recognized pairs there should be a way for all citizens to acquire the status to acquire those benefits in a fully secular way that is not extended arbitrarily to some citizens and not to others. Using the religious term “marriage” to describe such unions is, I believe, counterproductive because it suggests that the secular government can formalize a bond that is traditionally and essentially a religious one. Religious matters, I believe, should be left in the hands of the nation’s spiritual leaders and secular governments should limit themselves to the pursuit of secular goals and the perfection of secular institutions.
I do not see any contradiction in feeling that Jews in synagogues should be married according to Jewish law, but that the federal and state laws that govern us as citizens of our country and states should be fully non-discriminatory in every way. I would take the greatest umbrage at receiving a letter from the attorney general informing me how I must conduct matters governed by religious law in the context of my own congregation. But I applaud the administration for taking a step earlier this week that I now understand was fully in keeping with their mandate to safeguard the civil rights of all citizens and to move aggressively against measures intended to erode those rights, let alone to trample on them.