When a newspaper columnist takes time off to, say, write a book, the paper will note: ?So-and-so is on hiatus, but his column will return.? It?s sometimes unclear whether this is a promise or a threat.
The same thing can now be said about the Defense of Marriage Amendment. The Senate, by refusing to consider a constitutional amendment to protect traditional marriage, has put the issue on hiatus. But it will return.
To see why, let?s track the likely course of marriage over the next few years. For now, the 1996 Federal Defense of Marriage Act remains law of the land. It defines marriage as the union of one man and one woman, and says no state will have to recognize a ?marriage? performed in another state that doesn?t meet this definition.
But at the same time, our traditional policy of federalism remains in place, which means each individual state may define what ?marriage? is. The Massachusetts Supreme Judicial Court ruled last year that marriage is ?the voluntary union of two persons as spouses, to the exclusion of all others.? According to the justices, ?the right to marry means little if it does not include the right to marry the person of one?s choice.?
So for now, two men can be legally married in Massachusetts, but, if they move next door to New Hampshire, that state can refuse to recognize the marriage.
That?s clearly untenable. Indeed, legal challenges are already underway. A lawsuit in Florida argues DOMA violates both the equal protection and full faith and credit guarantees of the U.S. Constitution.
According to Heritage Foundation scholar Matthew Spalding, that challenge stands a good chance of success. ?Assuming the Supreme Court follows the logical trend of its own precedents and jurisprudence of recent decades, it would be inconsistent for a majority of the Justices not to redefine marriage,? Spalding writes. That means nationwide recognition of same-sex marriage. Here?s where things start to get expensive.
Consider again the words of the Massachusetts court: Marriage is the ?voluntary union of two persons as spouses, to the exclusion of all others.? That bestows the rights -- and benefits -- of marriage on any two people who want them for any reason.
Imagine two men living together. They?re not homosexual, but they are good friends who?ve roomed together for years. One of these men loses his job. This is a big problem, because he?s got some serious health problems. The other man, however, has excellent health benefits.
Why shouldn?t these men ?get married?? That would allow the sick man to take advantage of the healthy man?s health insurance, and it wouldn?t cost the healthy man much, if anything. Oh, sure, it would cost his employer and his insurance company quite a bit, but that?s not really his concern. After all, it?s simply unfair that all those married people he works with get to take advantage of spousal health benefits while his sick, unemployed roommate can?t.
When the second man gets another job, or when either man finally meets Miss Right and decides to settle down, they can always get divorced. After all, there?s no stigma attached to divorce these days.
Or how about this scenario: A woman, after graduating from college, moves back in with her widowed mother. This woman never marries, because she?s so busy taking care of mom that she never has time to date. The way things stand today, when her mother dies, this woman is left with nothing. But, if they could ?get married,? the daughter would be eligible for Social Security survivor?s benefits.
Author and homosexual rights activist Davina Kotulski insists that marriage conveys more than 1,300 rights and privileges. Isn?t it blatantly unfair that the young woman imagined above, who?s devoted her entire life to taking care of her mother, is ineligible for all these benefits? Surely she?s as devoted as most spouses are.
Some, of course, will say none of this could ever happen. They?ll claim that platonic roommates or mothers and daughters would never attempt to get ?married? because society wouldn?t accept the union.
Well, 20 years ago, I can remember visiting my father?s office. There was one item on almost every desk: an ashtray. Almost everyone in that office (including my father) smoked. If you?d told me in 1984 that, within a generation, smoking would be illegal in virtually every public building, I?d have laughed. Too many people smoked -- banning it would have seemed impossible. But society changed. The acceptable quickly became unacceptable.
That can work the other way, too.
When it comes to marriage, society would also change, this time for the worse. The unacceptable would quickly become commonplace. Plus, we?d all end up paying more for our health insurance and we?d be adding millions of dollars worth of commitments to Social Security, even as the venerable program approaches bankruptcy.
Federal action will be needed to address all this. DOMA will be back. And that?s a promise, not a threat.