DOMA Goes Bankrupt and the Rhetoric of the Marriage Debate

In any event, the bankruptcy court went through the test for heightened scrutiny, finding that sexual orientation is immutable, that gay people suffer discrimination, that gays face significant political obstacles to alleviating discrimination at the ballot box, that one's sexual orientation is irrelevant to one's ability to contribute to society and even took to heart the notion that treating gay couples differently than opposite-sex couples is a form of gender discrimination. That last argument, though eminently reasonable to many of us, has been accepted by precious few courts and explicitly rejected by various federal appellate courts. The court also found no rational basis for DOMA.

Judge Donovan, the opinion's author, took a shot directly at Congress for passing DOMA in the first place, stating that "[a]lthough individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the debtors in this case."

This is an important decision. Even though bankruptcy judges sit pretty low on the totem poll of federal precedent, this decision, especially given its 20 co-signers, could persuade bankruptcy judges in every other jurisdiction where same-sex marriage is legal.

Most commentators have placed this decision in the narrative that DOMA violates the rights of same-sex individuals and couples. That is what heightened scrutiny is all about — namely, making sure that when the state is fiddling around with discrimination against certain groups, it does so only for very good reasons. But, perhaps more notable is the bankruptcy judge's reminder that our quest for marriage rights is not simply an issue of "rights," but a matter of the virtue of marriage itself.

The court quoted Justice Douglas's homage to marriage from Griswold v. Connecticut, where the liberal lion of the Court noted that "[w]e deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not in political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

No truer words have ever been spoken. Marriage is dishonored when the state bars an entire class of persons from it for any reason, but especially for reasons that are irrational; their right to it is almost secondary to the importance of the institution itself.

This decision is not only another nail in DOMA's coffin, but it asks us to consider our rhetoric as we advocate on behalf of same-sex marriage. Are we simply asking for rights or are we also asking Congress — or, this week, the New York State Senate — to honor the institution of marriage by allowing gays to take part? This question may strike some as esoteric or even a little heretical, but how we make our arguments in court and in the court of public opinion matters.

If we stick to notions of "equality" and "rights," all of which are true, we run up against conflicting rights of others and the problem posed by domestic partnerships and civil unions as so-called compromises. After all, New York Republicans' quest for religious exemptions and protections is really one part of a debate over the rights of religious institutions. But, if we remind our conservative opponents that the debate over same-sex marriage is also about honoring the institution of marriage itself, thus speaking in language to which conservatives can relate, we may find it easier to get that extra vote and move beyond the sticking points that are holding up marriage in New York right now.

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.