Disclaimer: As the Supreme Court of the United States began hearing oral arguments in United States v. Windsor, I have tried to present and fair and balanced approach to the subject. I have done my best, but I apologize if my own opinion influences the arguments, specifically in regards to the citation of facts and numbers.
The federal Defense of Marriage Act was signed into law in 1996 during the Clinton administration. It’s a short act (the full text may be found here) that outlines two major laws:
§2 “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
§3 “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
So DOMA says that no state is required to accept any other state’s marriage licenses if the license is for a same-sex marriage and that, for federal purposes, a marriage is defined as a union between a man and a woman.
The Obama administration believes that §3 is unconstitutional and does not defend it. It will, however, continue to enforce the law until the courts declare it unconstitutional or it is repealed.
In 2007, Edith Windsor and Thea Spayer, residents of New York state, were married in Toronto, Ontario. When Spayer died in 2009, New York recognized same-sex marriages performed in other places. The federal government did not, however, per DOMA, and Windsor was forced to pay $363,000 in estate taxes as if she and Spayer had not been married–if, like New York, the federal government had recognized their marriage, Windsor would have paid $0. Windsor’s case argues that §3 of DOMA, which for federal purposes defines marriage as a union between a man and a woman and thus excluded Windsor and Spayer, is unconstitutional.
The district court found §3 to be unconstitutional and ordered the estate tax to be refunded. The Justice Department, while agreeing with the decision, appealed the ruling as it is bound to enforce the law. The appellate court upheld the district court ruling, declaring Section 3 to be unconstitutional under the equal protection clause of the Fifth Amendment to the Constitution of the United States. The case has now gone to the Supreme Court, and oral arguments were heard late last month.
Christianity: Supporting DOMA §3
Arguments that argue for or against the constitutionality of DOMA §3 tend to come from different starting points. For Christians who support DOMA §3, the starting points are the family and nature. Human beings do not grow and live in isolation. Indeed, we literally cannot, as the care and protection of an adult is the only thing that keeps a baby human from starving to death. Throughout human history, the family unit has been vital to the continuation of the species and the construction of society. Humans will group family units to form larger units, but the importance of the small family unit cannot be overstated. Studies show that children that grow up in stable, loving families inherit stable, loving lives as a result of that upbringing.
Biologically, a male and a female are required for the human race to continue and to start a new family unit. God created human beings this way specifically and with purpose. Animals with defined and separated genders all reproduce this way. The physical evidence that males and females belong together is overwhelming in genetics and biology. This is what constitutes the family, and what has done so for thousands of years–marriage has always been between men and women.
The most often quoted argument supporting DOMA §3 comes from sacred books such as the Hebrew and Christian Bibles and Islam’s Qu’ran. Jewish Levitical law condemns homosexual practices, as do some of the Christian epistles. The Qu’ran condemns homosexuality based on the story of Lot in Sodom and Gomorrah². These texts are clear and unambiguous, unlike other texts, which could be interpreted in different ways. Therefore, same-sex marriage should not be allowed because, by its very nature, it ignores these condemnations.
Christianity: Opposing DOMA §3
Justice is the primary impetus for religious opposition to DOMA §3. According to the United States Government Accountability Office, there are 1138 statutory provisions, rights and responsibilities in which marital status is a factor. These include many monetary provisions, such as the ability to jointly file taxes and the ability to share insurance. But they also include the right to visit a spouse in the hospital, make funeral arrangements for a spouse, the right to inherit property, and joint-parenting rights. Because there are so many rights and responsibilities, and because they are so important, it is unjust to deny them to same-sex families. Christians use the writings of the prophets to support their case; the majority of the prophets proclaimed that God was more concerned with social injustices that people commit against each other than with correct ritual practices.
None of the sacred texts in the major faiths explicitly condone homosexual practices (the three Abrahamic faith books all condemn it, and the texts of Hinduism and Buddhism are much less clear), which presents an obstacle for religious people opposed to DOMA §3. Instead, they must rely on broader interpretations to make their case. Christians who support same-sex marriage interpret the prohibitions of the Bible to be cultural, not the explicit will of God. The God who created homosexual human beings and created the ability to love would not then deny those people the right to do so. The scriptural prohibitions are held in tension with the character of God as revealed in those same scriptures.
Christians who support DOMA §3 argue that justice is not an issue because marriage as an institution is neither required nor forbidden by law–it is a free choice, and those who choose not to legally marry do not enjoy the rights and responsibilities associated with marriage no matter their sexual orientation. A single man is not entitled the benefits of marriage, either, because he has chosen not to be married.
A stable, unchanging definition of marriage is required. By changing the definition of marriage in this case, the door would now be open to change it in other ways, such as permitting polygyny (one husband, many wives), polyandry (one wife, many husbands), child marriage, or even the marriage of human beings with animals or objects.
Finally, Christians are bound by the moral and ethical will of God as presented in the Bible. A Christian is not free to pick and choose which of God’s laws must be followed.
Christians who oppose DOMA §3 argue that same-sex marriage does not undermine the family; rather, it provides for the same stable framework that has supported human society and the raising of children that traditional marriage does. The only difference is the gender of the two people involved in the marriage.
Traditional marriage, marriage between one man and one woman, is not the standard relationship for most of human history. For the majority of human history, polygny was the standard. Women were property, not people, in this model, and this view persisted until only the last few hundred years. This is also the prevalent model of marriage in the Old Testament.
Homosexual behavior can also be considered “natural” because it occurs in animals outside the human race. Most animals are not monogamous, and many engage in both homo- and hetero-sexual behavior. A behavior that occurs in nature cannot, then, be unnatural.
Finally, Christians have always set aside laws in the Bible when they are no longer needed. The majority of the Levitical and Holiness codes no longer apply, and not all of the New Testament views are still held today, such as Jesus’ condemnation of divorce.
Christians who support DOMA §3 rebut that other forms of marriage outside of one-man/one-woman marriage were never part of God’s plan according to the words of Jesus; monogamy was always God’s intention. A behavior that occurs in nature does not automatically mean that it is natural and permissible: carnivores kill animals, but that does not mean that murder is permissible. The laws that Christians have set aside are laws that Jesus fulfilled for Christians, so that they are no longer binding. Christians didn’t simply choose to ignore them.
I stand with those opposed to DOMA §3 based on the arguments of justice and love. As a Lutheran, part of a tradition that emphasizes the word of God in the Bible, that means I have to hold in tension what I believe God is saying through those words with what some of the printed words actually are. I don’t try to explain away the few condemnations against homosexuality, just like I don’t try to explain away God’s Old Testament penchant for mass genocide. Instead, I have to rely on prayer and the Holy Spirit to guide the church to do what is right. I am moved by the words of the prophets and by the true and honest love I have witnessed between same-sex couples.
I also believe that marriage, being one of the duties of the states, should not be regulated by federal law. While I think DOMA §2 can be annoying (and I would be happy to see it go as well), it makes clear that the states have the final say in marriage. Federal law should not be explicitly Christian, either, so banning same-sex marriage on solely religious grounds is, I believe, inappropriate.I do not agree that allowing the state to perform same-sex marriage is persecuting the church. Nor do I agree that repealing DOMA will force churches to perform marriages that they do not believe are healthy. Marriage as a legal institution can be performed by ministers acting as representatives of the state, but is separate from the sacred blessing of the marriage. If that means separating the state institution into “civil union” and retaining the name “marriage” for the religious blessing, I am okay with that.