Rebecca Hamilton doesn’t like DoJ’s amicus brief to overturn DOMA.

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.

About JT Eberhard

When not defending the planet from inevitable apocalypse at the rotting hands of the undead, JT is a writer and public speaker about atheism, gay rights, and more. He spent two and a half years with the Secular Student Alliance as their first high school organizer. During that time he built the SSA’s high school program and oversaw the development of groups nationwide. JT is also the co-founder of the popular Skepticon conference and served as the events lead organizer during its first three years.

  • Glodson

    Just goddamnit.

    How many fucking hoops do they have to jump through to justify bigotry?

  • Desiree

    Bigots arguements are going to get worse and worse as they see society progress to equality. The thing I’m most worried about is once marriage equality becomes a reality, these same people will switch sides and claim it was their idea from the beginning. Christians already tried to claim abolishing slavery and segregation.

    • tubi

      They’re already doing it. Nicolle Wallace was on Maddow on the 5th to talk about the amicus brief filed on behalf of 100 or so Republicans in support of marriage equality. Ostensibly, the issue was how few of those who signed on to the brief are currently in elected positions (2) as compared to the 98+ who are effectively retired and insulated from retaliation by any electorate. But several comments she made caused me to take note. They sure sound like the beginnings of a historical rewrite.

      On one of the reasons for people signing on being respect for Ted Olson and his arguments in support of marriage equality:
      “…they have made this argument that even someone like me who is — can understand, that the equal protection clause, that everyone is entitled to equal protection under our laws, and you can’t have a separate set of laws for a class of people. You can’t deny people access to marriage because they want to have a same-sex marriage. You can’t have different rules for different classes of people. The other thing is Republicans, I think, had traditional ideas about marriage because they so revered the institution. And if you so revere the institution of marriage, then shouldn’t you want every family to have access to marriage?

      And further:
      “[A] marriage creates the kind of families that if you’re a conservative, you think create the kind of neighborhoods that create the kind of society that we want. So it is a truly conservative stance.

      Why does Rebecca Hamilton hates families?

  • iknklast

    Wait a minute – doesn’t DOMA put the federal government in the business of regulating marriages? Getting rid of DOMA – wouldn’t that sort of put it back to the states?

    Once more, I’m ashamed of growing up in Oklahoma.

    • Derrik Pates

      But that doesn’t count, because it’s the kind of regulation that she thinks should exist. It’s the usual right wing crazy dodge.

  • M

    Doesn’t the federal government already regulate marriage? There are thousands of federal laws dealing with the immigration, inheritance, taxes, health care, child custody, and dissolution of marriage among other things. How on earth does overturning DOMA count as a special intrusion?

  • John Horstman

    Also, the premise of that first argument isn’t even true (though were it true, I’d agree that some legal hassle doesn’t justify bigotry). States are constitutionally bound to honor contracts established in other states. There’s no uncertainty or ambiguity or potential muddle – states would simply have to recognize marriage contracts from other states, even if such contracts would not be valid if entered into within the state in question. It’s actually very simple.

    The second argument is just the same tired “accuse your enemy of doing that shitty thing you yourself are doing” line. DOMA regulates marriages; repealing it takes the federal government OUT of the the marriage-regulation game (though, as M points out, the feds do use marriage as a basis for various policies and laws).

    • Steve

      Unfortunately, the Supreme Court has carved out a ridiculous “public policy exception” to the Full Faith and Credit Clause that allows states to freely ignore other laws from other states if they conflict with a clearly established public policy.

      You need to distinguish between contracts and court judgements and laws here. A state usually can’t ignore a court order from another state. That’s why adoption degrees are portable and why it’s recommended for gay couples to adopt their own children even if they are married. But any rights that come from being married are based on a status and can be ignored.

      “United” states my ass. What really needs to happen is for states to stop pretending that they are independent countries. This isn’t the 18th century.

  • Andrew Kohler

    The D[enial] of Marriage Act does two things, as follows [Section 1 is just the short title of the bill, so that doesn't count]:

    Section 2: Grants states the right to refuse to recognize legal marriages between same-sex couples from outside jurisdictions, hence creating a gay exception to the Full Faith and Credit Clause. This is the part Rebecca Hamilton describes, accurately. Interesting note: nothing in the law (Public Law 104-199) to address marriages that conflict with state laws for other reasons (states have differing laws regarding marriage between first cousins and different ages at which people may marry). In fact, in committee a Republican by the name of Mike Flanagan (no longer in Congress) proposed the following amendment: “An amendment by Mr. Flanagan to strike the words `between persons of the same sex’ from Section 2 of the bill, thereby authorizing States to decline to give effect to any marriage celebrated in another State. The amendment was defeated by a 9-19 rollcall vote.” (from the House Report) Flanagan supported the bill, but the eight other votes for this amendment were all cast by the bill’s opponents.

    Section 3: Stipulates that the federal government will not recognize an marriage to two men or two women that is legally performed by a state government.

    As I would have loved to comment on Ms. Hamilton’s blog (I didn’t survive moderation, and so complained to JT when he was asking us for suggestions of blogs to eviscerate–thanks for listening, JT :-D ), the “DOMA is about states’ rights” people completely ignore how anti-states’ rights is Section 3. In fact, this is from the House Report: “[Footnote 61] The effect of Section 2 flows from its purpose. Section 2 is intended to permit each State to decide this important policy issue for itself, free from any possible constitutional compulsion that might result from the Full Faith and Credit Clause. ” Not to rehash my own past blog comments, but I’ll go ahead and say again that Barney Frank offered an amendment to get rid of Section 3. It was defeated. Then he offered a modified version to say that the federal government would only recognize marriages between people of the same sex if they were approved by the legislature, ballot initiative, or a court decision were allowed to stand (in 1996 people were afraid of eeeevil activist judges in Hawaii redefining marriage, but the legislature passed a constitutional amendment saying the court couldn’t decide the issue–seriously). Only about 30 people who supported the bill voted for this amendment (that’s not even 10%), and only three were Republicans (none still in office). This figure counts Flanagan, who voted for it in committee but wasn’t present at the vote on the floor. A fourth Republican supported the amendment, openly gay Steve Gunderson of Wisconsin (or rather, openly outed by the completely vile lunatic Bob Dornan on the House Floor, who alas had to retract his remarks so this isn’t in the Congressional Record), who was the only Republican to vote against the bill.

    All this is to say: don’t look for consistency with these people.

    And a note re: Virginia’s Racial Integrity Act: it only prevented *white people* from marrying outside their race. The lawmakers were quite unconcerned with the integrity of blacks, Asians, Hispanics, Native Americans, et cetera. Therefore, the law effectively said that there are two races: white (which allegedly has “integrity”) and not white (which allegedly does not).

    • Andrew Kohler

      P. S. I just noticed the following: “The effect of Section 2 flows from its purpose. ” I’m pretty sure I remember being pissed off by this sentence when first I read it eight or nine years ago. Not only is the phrase “flows from its purpose” irritating, it is also meaningless: all it is saying is, “Hey, this bill does what it’s intended to do!” In other words, “We’re not so incompetent at writing bills that we’ve accidentally put forth something that doesn’t do what we thought it did!” (Good for you, lawmakers!) No one is saying the DOMA isn’t doing what it set out to do; we’re just saying that its purpose is bigoted and unconstitutional, and that its advocates are disingenuous when they talk about “states’ rights.”

      • baal

        Thanks for the break down. I was going to comment that the courts rule in cases using another State’s laws from time to time. The key word for this is ‘comity’. In order to get along better, States allow legal effect to the decisions of other States. In other words, the standard law of the States (normally) is that even if a State wouldn’t grant SSM licenses, they would respect the marriages performed in other States. The overall comparison to Loving is entirely apt.

    • Steve

      A lot of anti-miscegenation laws went a lot farther than that. They also established other races and it became particularly ridiculous for mixed-race people. In some places people of mixed race (and even if it was just 1/8th) technically couldn’t marry anyone (see State v Pass).

      It should also be noted that those laws weren’t always targeted at blacks. In west coast states they largely were aimed at Asians.

      • Andrew Kohler

        It makes sense, unfortunately, that “miscegenation” laws were aimed at Asians on the West Coast. Look at the famous one dissenting opinion in Plessy v. Ferguson (1896): John Marshall Harlan goes off on a tirade about how a “Chinaman” (his word) could never be an American. And speaking of Plessy v. Ferguson and people who were 1/8 black, the case was actually about such a person (an “octoroon” in the delightful parlance of the day)

        I was not aware that people of mixed races were not allowed to marry at all; for some reason that actually surprises me, even though it shouldn’t. Even the Nürnberg Rasseregeln (race laws) let the “Mischlingen” marry people, albeit with restrictions. (That’s the term for partly Jewish people–I have two Jewish grandparents so I’m 1. Grade, *first degree.*) They had this incredibly intricate yet incoherent chart:

        “2. Grade Mischlingen” (1/4 Jewish) may marry “Deutschblütiger” (fully German blooded) without restrictions; may marry “1. Grade Mischling” (1/2 Jewish) under special circumstances, but may never marry a Jew (3/4 or 4/4 are treated the same) or…another “2. Grade Mischling.” So, 1/4 + 1/2 = okay, 1/4 + 0 = okay; 1/4 + 1/4 = no way. Racism and logic don’t go together, it would seem–who’d-a thunk!?

        “1. Grade Mischlingen” may marry another “1. Grade Mischling” or a Jew, or, under special circumstances, a “2. Grade Mischling” or “Deutschblütiger.” That’s at least more logically consistent that the policy for 2. Grade.

        Oh, damn. I just went Godwin’s Law, didn’t I? I was hoping to avoid that. But, sadly, I think this comparison actually stands as valid.