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The Defense of Marriage Act, Romer V. Evans and the Cultural Battle They Represent, 19 Campbell L

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The Defense of Marriage Act, Romer V. Evans and the Cultural Battle They Represent, 19 Campbell L Campbell Law Review Volume 19 Article 7 Issue 1 Fall 1996 January 1996 Constitutionally Defending Marriage: The efeD nse of Marriage Act, Romer v. Evans and the Cultural Battle They Represent Leonard G. Brown III Follow this and additional works at: http://scholarship.law.campbell.edu/clr Part of the Civil Rights and Discrimination Commons, Family Law Commons, and the Sexuality and the Law Commons Recommended Citation Leonard G. Brown III, Constitutionally Defending Marriage: The Defense of Marriage Act, Romer v. Evans and the Cultural Battle They Represent, 19 Campbell L. Rev. 159 (1996). This Comment is brought to you for free and open access by Scholarly Repository @ Campbell University School of Law. It has been accepted for inclusion in Campbell Law Review by an authorized administrator of Scholarly Repository @ Campbell University School of Law. Brown: Constitutionally Defending Marriage: The Defense of Marriage Act, COMMENTS CONSTITUTIONALLY DEFENDING MARRIAGE: The Defense of Marriage Act, Romer v. Evans and the Cultural Battle They Represent I. INTRODUCTION.' There is a battle raging in America as real as any military battle fought by American soldiers in the jungles of Vietnam or on the deserts of Iraq. It is a battle pitting brother against sister, parents against children, American against American. The objec- tive: "the domination of one cultural and moral ethos over all others."2 This domination occurs in the law when one group wins a court decision consistent with that group's view of what truth is. This comment will first examine the clash of two views of truth. Then this conflict over truth will be examined by evaluating the constitutionality of the Defense of Marriage Act3 (DOMA) recently 1. I wish to thank the people who served as sounding boards for many of the ideas expressed in this comment. I am especially grateful to Professor William Woodruff for his input regarding the applicability of the Defense of Marriage Act to one's sexual orientation, to Professor Richard Bowser for his helpful editorial comments, and to my wife, Amy. 2. JAMES DAvisON HUNTER, CULTURE WARs: THE STRUGGLE To DEFINE AMERICA 42 (1991). 3. The Defense of Marriage Act is contained in 1 U.S.C.A. § 7 (West 1997) and 28 U.S.C.A. § 1738C (West 1997). 1 U.S.C.A. § 7. Definition of "marriage" and "spouse" In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. 28 U.S.CA. § 1738C. Certain acts, records, and proceedings and the effect thereof No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial 159 Published by Scholarly Repository @ Campbell University School of Law, 1996 1 Campbell Law Review, Vol. 19, Iss. 1 [1996], Art. 7 160 CAMPBELL LAW REVIEW [Vol. 19:159 signed into law by President Clinton and the impact of Romer v. Evans4 on the Act. The question of first importance when conducting a constitu- tional analysis is whose view of truth will judges and legislators use when deciding cases and enacting laws. The lens through which one looks at the Constitution, legislative enactments, city ordinances or even a posted speed limit is the lens of world view. Noted intellectual, apologist, and moral philosopher Francis A. Schaeffer writes: People have presuppositions, and they will live more consistently on the basis of these presuppositions than even they themselves may realize. By presuppositions we mean the basic way an indi- vidual looks at life, his basic world-view, the grid through which he sees the world. Presuppositions rest upon that which a person considers to be the truth of what exists. People's presuppositions lay a grid for all they bring forth into the external world. Their presuppositions also provide the 5basis for their values and there- fore the basis for their decisions. As a result, how one views the world will dictate one's deci- sions, conclusions, and arguments. To begin the debate over homosexual marriage with a constitutional analysis misses this most basic question of world view. For neither side in this war will be able to understand the other side's arguments until they understand what that side's presuppositions are that lead to their view of what truth is. The cultural war which homosexual marriage represents pits two world views in stark conflict, illuminating each side's view of the truth. One side views truth as subjective and pliable by changes in the culture. The other side views truth as tied to an objective standard. How one aligns along either of these two sides determines how one argues a legal position or judges a dispute. proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S.C. § 1738C (1996). 4. 116 S. Ct. 1620 (1996). 5. FRANcis A. SCHAEFFER, How Should We Then Live?, in THE COMPLETE WORKS Op FRANCIs A. SCHAEFFER 5 (1982). http://scholarship.law.campbell.edu/clr/vol19/iss1/7 2 Brown: Constitutionally Defending Marriage: The Defense of Marriage Act, 1996] DEFENSE OF MARRIAGE ACT 161 A. World View #1 - Truth is subjective. The world view that truth is subjective is displayed in the writings of many same-sex marriage and gay rights proponents. Ms. Deborah Henson provides an insight into the view many gay rights proponents have concerning what standard should be used to decide policy issues involving homosexuality. She writes: enacting legislation or deciding cases based on majoritarian morality is specious at best. First, the moral code changes with the times. Second, majoritarian morality is simply an inequitable and illogical basis on which to support lawmaking that pertains6 to such an important and personal institution as marriage. She goes on to conclude that moral neutrality is the best approach and that, "judges should abandon moral bases in judicial decision- making" based on her claim of increased acceptance of "alterna- tives to the traditional heterosexual lifestyle."7 Ms. Henson's world view is based on the belief that truth is subjectively molded by the current culture and is demonstrative of same-sex marriage proponents. B. World View #2 - Truth is tied to an objective standard. The other view of truth is that it is tied to an objective stan- dard. The Congressional Record is replete with comments made by congressmen and senators referring to an objective standard of truth. The Congressional Record reflects that this traditional moral basis is one of the strongest impetuses for the promulgation of the DOMA. Congressman Talent emphasizes "standards" of right and wrong "sanctioned by millennia of tradition" and sup- ported by Judeo-Christian teachings.' Congressman Barr empha- sizes that "we must maintain a moral [and ethical] foundation" in America. 9 Congresswoman Seastrand says the bill will "fortify marriage against the storm of revisionism."'0 6. Deborah M. Henson, Will Same-Sex Marriages Be Recognized in Sister States?: Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii'sBaehr v. Lewin, 32 U. LOUISVILLE J. FAM. L. 551, 595 (1994). 7. Id. at 596. 8. 142 Cong. Rec. E1346-01 (daily ed. July 23, 1996) (statement of Congressman Talent). 9. 142 Cong. Rec H7480-05 (daily ed. July 12, 1996) (statement of Congressman Barr). 10. 142 Cong. Rec H7480-05 (daily ed. July 12, 1996) (statement of Congresswoman Seastrand). Published by Scholarly Repository @ Campbell University School of Law, 1996 3 Campbell Law Review, Vol. 19, Iss. 1 [1996], Art. 7 162 CAMPBELL LAW REVIEW [Vol. 19:159 These comments are demonstrative of persons expressing the view that homosexuality is morally wrong and should not be encouraged by the state. This group believes that truth is objec- tive and the standard is not societal relevance but traditional reli- gious teachings of morality. C. Clash of world views in Romer v. Evans.1 These two world views are in constant conflict. One of the clearest examples of this conflict in the courts is the recent deci- sion of Romer v. Evans. The distance between the reasoning in Romer and the reasoning in Bowers v. Hardwick,'2 decided only ten years earlier, provides an example of judges taking sides in the cultural battle.13 The Supreme Court in Romer, declared a Colorado Constitutional Amendment (Amendment 2) prohibiting special rights for homosexuals invalid because it "seems inexplica- ble by anything but animus towards the class it affects."' 4 The majority opinion written by Justice Kennedy, however, did not address how this "animus" applied to uphold the State of Georgia's anti-sodomy law determined to be constitutional in Bowers.' 5 In Bowers v. Hardwick the Court declared that a majority belief that homosexuality is immoral and unacceptable consti- tuted a rational basis for upholding Georgia's anti-sodomy law.16 On the other hand, the Romer majority opined, "[b]y requiring that the classification bear a rational relationship to an independ- ent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group bur- dened by the law."117 In Justice Kennedy's view, a legitimate legis- lative end does not include an activity seen by a majority of the voters as immoral.
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