DOMA Ruling Creates New Bias

Member Group : Lincoln Institute

DOMA Unconstitutional – Problem Created

In the 5 to 4 decision, the Supreme Court ruled that the Defense of Marriage Act to be unconstitutional.

The Court’s decision (United States vs Windsor) has effectively provided that gay marriage should be treated identically to marriage between a man and woman. The decision reaffirmed the rights of the states to define marriage yet the decision was due principally to federal tax laws (in this case, estate taxes) which encourage marriage and the institution of marriage.

The court actually had three options when reviewing the Windsor case:

1. Affirm marriage as being between a man and a woman.
2. Affirm that tax codes which foster one form of relationship over another as being unconstitutional.
3. Affirm marriage as being between any two consenting adults regardless of sex.

The Court, in its infinite wisdom, was able to choose the only illogical choice available to it!

The "traditional" view of affirming marriage as being between a man and a woman is logical in many respects since children can result from such a union providing society with an ability to sustain the population.

Such self-preservation of society is seen throughout history and is with precedent in most cultures. Obviously, marriages without children are still valid marriages since the intent of the government would be to foster self-preservation and to sustain the population of a culture as a general societal principal.

In the second alternative of affirming that federal policies, of any sort, which foster one form of relationship over another, are unconstitutional would likewise be a logical construct in that government would be acknowledging that public policy should treat all citizens as equal. This would be a secular argument and a state’s rights argument. Its logic derives from the recognition that all citizens deserve equal protection.

The third alternative and the one affirmed by the Supreme Court that DOMA is unconstitutional, is perhaps the most illogical decision of all. Rather than making a logical argument, the Court sidestepped the entire issue and ruled that marriage is a state decision. In one opinion the rights of all single individuals were denied while preserving the rights of those supporting same sex marriages.

In that singular illogical decision, the United States Supreme Court has managed to undermine an entire foundation of our Republic while pretending to uphold states rights. Simultaneously, the Court was able to choose the only illogical conclusion possible as the basis for its decision.

Whatever your religious conviction is relative to marriage, our nation’s tax codes have fostered the notion that it was in the best interest of society and the nation to foster marriage. As the court acknowledged, federal policy frequently made marriage a preferred national goal. As a result of that supposition, the entire U. S. Tax Code reinforced the "tax benefits" of marriage to include the estate tax provision which caused the U. S. Supreme Court to take up the case of United States vs Windsor to begin with.

In its decision, the Court held "Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy,…DOMA’s principal effect is to identify and make unequal a subset of state sanctioned marriages…" (pages 2 to 4 of the decision).

The tax code, Social Security, estate taxes, and an plethora of governmental programs have been set up to reinforce the value of marriage. The thought process behind that legislation was that it was in society’s best interest to propagate itself by reinforcing marital unions in which children can be born. That’s biology not discrimination!

With the ruling that DOMA is unconstitutional the Supreme Court has ruled that marriage regardless of the benefit to society should be protected. Such a decision is what creates the quandary.

Effectively, the Supreme Court has reinforced the notion that those individuals who wish to live a single lifestyle and not marry may be discriminated against because it is not in the best interest of society to remain single.

If the Fifth Amendment to the Constitution was the issue for the jurists as the majority opinion indicates, it would seem to make sense that equal protection would be afforded to every single citizen regardless of marital status. Instead the Supreme Court has decided to make it about sexual orientation.

The Supreme Court has once again created an environment in which the wrong problem was addressed. The Court created more problems than it purportedly solved.

I would hope that one day that the Supreme Court would understand that discrimination is discrimination regardless of marital status. The individuals who were supporting the gay rights movement saw this only as a gay rights issue as opposed to the true issue that is.

Every citizen regardless of any marital status should be afforded equal protection and that no law should be structured to give marital status preference over any group unless the self-preservation of a society is the goal as would occur with the traditional definition of marriage.

The Supreme Court has failed to recognize issues for what they are. Instead the Court adopted the popular opinion of the day that discrimination is only discrimination if the cause is popular.

Col. Frank Ryan, CPA, USMCR (Ret) and served in Iraq and briefly in Afghanistan and specializes in corporate restructuring and lectures on ethics for the state CPA societies. He has served on numerous boards of publicly traded and non-profit organizations. He can be reached at [email protected] and twitter at @fryan1951.