Thursday, March 21, 2013
DOMA really is an abusive of federalism after all
George F. Will has an instructive column about DOMA on p. A19 of the Washington Post on Thursday, “DOMA’s abuse of federalism”. The link is here.
DOMA, Will argues, sets itself up to reject states’ own policy judgments on domestic matters. Will refers to an argument at Duke Law School that parallels DOMA to the federal government’s (and Full Faith and Credit) respecting state laws on no-fault divorce. Suppose federal law refused to recognize a divorce unless there was a finding of fault?
On the other hand, in the 1990s it seemed reasonable that if the federal government were not to be bound by a state’s recognition of gay marriage, more states might be willing to try it. I even suggested that with my proposed “Amendment 29” in Chapter 6 of my first “Do Ask Do Tell” book.
Twenty years ago, there was a somewhat different perception of marriage and family, because the Internet had not developed enough to promulgate more progressive views. On the one hand, there was a notion that marrying and having a family was a private choice, a morally neutral "option", expressive of self. “Yuppies” could do very well in life by avoiding it. Despite the tax preferences for some couples and families, many other families found their discretionary income crimped, and sometimes faced a “marriage penalty”. In the gay area, as views slowly became more tolerant (particularly when Bill Clinton posed the idea that gays should be able to serve openly in the military, leading to the 17 year battle over DADT). But there was a feeling that in a parthership between two young, healthy men (or two women), both working and capable of self-sufficiency and (compared to today) less likelihood or becoming involved in parenting, there was no reason to worry about benefits.
I will have to note Will’s argument in my finale revisions to my “DADT III” update, which I hope will be out late this spring.