Is DOMA Dead?

This has been Same-Sex Marriage Week at the Supreme Court, and reports are that the Defense of Marriage Act was absolutely clobbered yesterday. Of course, such predictions have been wrong before, but Lyle Denniston of SCOTUSblog reports that Kennedy the Swing Justice appears to be on the side of the four liberals on this one.

See also Irin Carmon:

It didn’t take long for the empty truth about the discriminatory Defense of Marriage Act to be exposed Wednesday, and there was little equality opponents could do. At the Supreme Court hearing, Elena Kagan, the newest justice, went to the House Report from Congress when it passed the law in 1996, and summarized DOMA’s entire legal underpinning: “Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.” According to people in the room, there were gasps and laughter at the so-called “gotcha moment.”

It was a duh moment, but a necessary one. Yes, DOMA’s about discrimination. That disapproval of gay people, not tradition or government uniformity, is at the root of the act is blatantly obvious both to anyone who observed it at the time and to everyone who has changed their Facebook profile photo this week. But it needed to be set out on a national stage, a few feet away from rainbow-festooned children asking what the big deal was. This week, both sides put forward their best cases and it quickly became clear the opposition to equality is based not on law or reason, but bigotry.

See also Defense Of Marriage Act Takes A Beating At Supreme Court and “Elena Kagan’s DOMA ‘gotcha’ moment.”

Religious bigots have been quick to claim martyrdom — Christians are now more scorned than homosexuals — and denounce legal gay marriage as a denial to their religious freedom, never mind that nobody is asking anybody to get “gay married” against his will. In the twisted minds of the bigots, “freedom” means the freedom to oppress others.

Paul Wildman writes

Here’s Fox News commentator Todd Starnes on the oppression that has already begun (“it’s as if we’re second-class citizens now because we support the traditional, Biblical definition of marriage”). And how is this second-class citizenship being thrust upon them back in the real world? Well, people are … strongly disagreeing with their position on an issue of public concern! It’s awful, I tell ya.

The impulse to jam that crown of thorns down on your head is a powerful one in politics. It means you’ve achieved the moral superiority of the victim, and the other side must be the victimizer. The problem is that these folks don’t seem to have much of a grasp on what second-class citizenship actually looks like. Last time I checked, nobody was forbidden to vote because they’re a Christian, or not allowed to eat in their choice of restaurants, or forced to use separate water fountains, or even be forbidden by the state to marry the person of their choice. That’s what second-class citizenship is. Having somebody on television call your views retrograde may not be fun, but it doesn’t make you a second-class citizen.

But I call particular attention to Erick Erickson’s screed, ‘Gay Marriage’ and Religious Freedom Are Not Compatible.

Erickson begins by acknowledging the libertarian argument that government should stay out of marriage. But, he argues, “the left” will never allow that to happen.

The left cannot take marriage out of government because for so long it has been government through which marriages were legitimized to the public and the left must also use government to silence those, particularly the religious, who refuse to play along.

Oh, that crown of thorns you wear must be digging into your brain, EE. But let’s continue … Erickson’s argument against legal same-sex marriage is entirely religious. He quotes the Bible, even, and says,

As long as there are still Christians who actually follow Christ and uphold his word, a vast amount of people around the world — never mind Islam — will never ever see gay marriage as anything other than a legal encroachment of God’s intent.

Erickson has several blind spots, one of which is that DOMA was/is a blatant attempt to use government to thwart those who disagree with his point of view. “Using government” is only bad when liberals do it, apparently.

Erickson’s biggest blind spot is, of course, the establishment clause. The 1st Amendment specifically strips Congress of the power to create law based on religious consideration. Even if God Herself were to pop into Washington DC and ask that such-and-such a bill be passed, it would be unconstitutional for Congress to do so, unless there is also a compelling non-religious reason for the law.

And, of course, nobody is forcing anybody to “gay marry.” Further, as Paul Wildman continued,

One of their favorite scare stories is that before you know it, Christian ministers are going to be hauled off to jail or have their churches lose their tax-exempt status if they refuse to marry gay people. Right, just like at the moment a Jewish synagogue will lose its tax-exempt status if the rabbi won’t preside over a Pentecostal wedding. And as for the florist who refuses to sell flowers to a gay couple, what he’s asking for is not a right but a privilege, the privilege to discriminate based on sexual orientation. It’s no different than if he refused to sell flowers to an interracial couple. But somehow, if he finds justification for that discriminatory practice in his faith, that’s supposed to make it a fundamental right.

What they can’t permit themselves to see is that they are not asking for freedom for people to live according to their own religious beliefs, which is what religious liberty is about. They are intent on using government to force everyone to live according to their religious beliefs. When Christianist whiner David Brody asks,

So here’s a question that may be a bit rhetorical in nature: Is it not the responsibility of the homosexual activist leaders to become much more vocal and preach tolerance and acceptance of the views from Bible-believing evangelicals? If they want tolerance and respect, shouldn’t they preach the same thing toward evangelicals?

… he’s asking for homosexuals to be “tolerant” of his oppression of them, whereas nobody is denying him the right to marry a woman. It’s not exactly equal.