During oral argument on the DOMA challenge last week, Justice Kagan quoted from a House report on that legislation. In case you were interested, you can find it here. It’s a report from the House Judiciary Committee to the full House when the bill was sent to the floor for a vote. Section V of the report spells out the “governmental interests” allegedly advanced by the bill and subsection B argues that DOMA “advances the government’s interest in defending traditional
notions of morality.” Here is that section:
B. H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY
There are, then, significant practical reasons why government affords preferential status to the institution of heterosexual marriage. These reasons—procreation and child-rearing—are in accord with nature and hence have a moral component. But they are not—or at least are not necessarily—moral or religious in nature.
For many Americans, there is to this issue of marriage an overtly moral or religious aspect that cannot be divorced from the practicalities. It is true, of course, that the civil act of marriage is separate from the recognition and blessing of that act by a religious institution. But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect. Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. As Representative Henry Hyde, the Chairman of the Judiciary Committee, stated during the Subcommittee markup of H.R. 3396: “[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people…feel ought to be illegitimate…And in so doing it trivializes the legitimate status of
marriage and demeans it by putting a stamp of approval…on a union that many people…think is immoral.”
It is both inevitable and entirely appropriate that the law should reflect such moral judgments. H.R. 3396 serves the government’s legitimate interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.
Closely related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality. While there is controversy concerning how sexual “orientation’ is determined, “there is good reason to think that a very substantial number of people are born with the potential to live either gay or straight lives.” E.L. Pattullo, “Straight Talk About Gays,” Commentary 21 (December 1992). “[R]eason suggest[s] that we guard against doing anything which might mislead wavering children into perceiving society as indifferent to the sexual orientation they develop.” Id. at 22; see also Bennett, The Washington Post A19 (May 21, 1996) (“Societal indifference about heterosexuality and homosexuality would cause a lot of confusion.”); Deneen L. Brown, “Teens Ponder: Gay, Bi, Straight? Social Climate Fosters Openness, Experimentation,” The Washington Post A1 (July 15, 1993) (recounting interviews with dozens of teenagers, school counselors, and parents regarding increased “sexual identity confusion” apparently reflecting increasing social acceptance of homosexuality). Maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality, for as Dr. Pattullo notes, “to the extent that society has an interest both in reproducing itself and in strengthening the institution of the family… there is warrant for resisting the movement to abolish all societal distinctions between homosexual and heterosexual.” Pattullo, Commentary at 23.
Once again, we behold the power of The Gay. If we don’t punish gay people and deny them their rights, everyone will suddenly and inexplicably become gay because it’s just so incredible alluring. And then we’ll stop having babies and the society will die out and the Russians will come take us over, or something. This was Congress’ “reasoning” in passing DOMA in 1996.