Rebecca Hamilton, over at Public Catholic, is worried about the amicus brief filed by the Obama DoJ imploring the SCOTUS to overturn the Defense of Marriage Act. Her gripe is it twofold. First, she complains that it would muddle the laws:
The act does not prohibit states from allowing gay marriages, neither does it obligate states to recognize the gay marriages from other states.
If the court overturns this act, it would make a muddle of marriage laws within and among the states.
Let me try to explain:
Right now, Oklahoma does not have a law allowing same-sex marriage. In fact, Oklahoma has an amendment to the state constitution which defines marriage as between one man and one woman.
If our neighboring state of Texas passes a law redefining marriage as between someone other than a man and a woman, the Federal Defense of Marriage Act would protect Oklahoma’s current law. Oklahoma would not be obliged to honor Texas’ law.
If this act is overturned by the Supreme Court, the question of what Oklahoma must do in this situation would be up in the air.
This same argument was used in 1967 while urging the court not to overturn Virginia’s Racial Integrity Act (I think they used “Integrity” where they meant “Separation) and Pace v. Alabama, which would result in interracial couples being able to marry in the United States. In the case of Loving v. Virgina, the Lovings had been married in Washington DC to dodge the Racial Integrity Act and then moved back to Virgina, which violated section 20-58 of the Virgina code which stated that you can’t get married out of state and return just to dodge the state’s laws. This is what’s going on in Oklahoma with gay marriage now.
The response to that argument of Rebecca Hamilton is as simple now as it was then: there is an injustice on our hands and the United States is better than that, even if the leaders of some states are not. You will abide by the court’s decision.
Interesting side fact, when the Lovings were convicted in 1959 (they were sentenced to one year in prison, which was suspended as long as they agreed to leave the state), the trial judge Leon M. Bazile quoted 18th-century German physician Johann Friedrich Blumenbach on why the different races should not be allowed to marry:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
I think I heard an “amen!” from Oklahoma. It was hard to pick it out over the groaning from the rest of the civilized world.
Anyway, the point is that sorting out laws may be a pain in the ass, but that’s the price we pay for living in a democracy with a system of checks and balances. We managed back in 1967 while righting an age-old injustice, and I’m sure Oklahoma will begrudgingly manage here. People shouldn’t have to live in inequality just to save legislators a hassle.
Hamilton’s other gripe was:
The other effect of overturning DOMA would be that it would allow the federal government to put itself in the marriage regulation business. From what I have seen of this president, you’d better get hold of yourself if this happens, because it’s going to be sweeping, heavy-handed and against the religious freedom of practicing Christians and Christian churches.
Yes, because it would be horrible if the federal government were in regulating marriage business…like they were in 1967, or when they made any laws regarding marriage all the way back to the country’s inception.
And how will the legislation be against “the religious freedom of practicing Christians and Christian churches”? Hamilton doesn’t say, but she sure wants you to believe it’s going to happen. Letting gay people get married would not force Christians to get gay married, nor would it force your church to perform such marriages.
Many Christians seem to feel their liberty is impugned if modernity is allowed to persist in their presence, even if they don’t personally have to extract their behavior from the depths of the first century.