George Will and DOMA

In a recent column, George Will tries to make the Defense of Marriage Act (DOMA) controversy a question of states’ rights. I think he’s wrong. The federal government is fully within its bounds to define marriage for civic purposes - for authorizing survivor benefits (for both employees and Social Security) if nothing else. It may be true that the feds overstep their bounds by “defending marriage as an institution”. That’s none of their business. But the question is not whether the feds have the authority to legislate terms for marriage; it’s what kind of laws can they make? 

Religious marriage aside (they can do whatever they want), I personally think it’s a good idea to put some boundaries on the concept of marriage when it comes to legal responsibilities, liabilities, and benefits. Thought experiment: if the federal government simply recognized each state’s definition of marriage for Social Security purposes, and Nevada decides to legalize interspecies marriage, does Social Security pay full benefits to the donkey whose husband is killed in a car crash? Of course that’s ridiculous and would never happen, but it would be a mandated outcome if one takes a dogmatic approach to the notion of states’ rights. But I think we can almost universally agree to rule out interspecies marriage. For now.

But if some form of definition is desirable, I think the least restrictive definition is best. “Marriage is a long-term, hopefully permanent, commitment between two consenting adults of legal age.” What’s wrong with that? If some states wish to place bigoted restrictions on who can get married.... Let the residents of that state wrestle with their own demons. Just don’t drag the rest of us down with you.

You see, it’s not about politics -- the negotiated adjudication of differences -- it’s about morality. DOMA was a moral statement. And it was completely inappropriate. The government is obligated to provide a consistent definition of marriage for a legal purposes, but the best government governs least. Restricting marriage to a man and a woman violates that principle: it is based on a moral notion that is not universal. Such government overreach should offend true conservative principles (not, of course right-wing religious principles). DOMA was intended to turn sectarian religious principles into the law of the land, and it is on that ground, not states’ rights, that it is unconstitutional.