DOMA, Wendy Davis, and the Absurd

by Benjamin Studebaker

Results-wise, it’s a great day for America. The Supreme Court struck down most of the Defense of Marriage Act (DOMA), which forbid gay couples from enjoying the federal benefits that go along with entering into the legal contract we call “marriage”. In the meantime, in Texas, state senator Wendy Davis managed to prevent, for the time being, the passing of legislation which would have closed 37 of the state’s 42 abortion clinics. Regular readers know my long-standing support for gay marriage and my belief that abortion is always permissible. While I’m happy to see our institutions produce good outcomes, I also find myself mightily disturbed today. Why? Because when we dig into how these things came about, it becomes clear not only how close our institutions came to failing, but how absurd our decision-making process is in the first place.

I’m very glad that the Supreme Court struck down DOMA, but much less glad about how it happened, and the fact that it even had to happen in the first place.

The basis for striking down DOMA is the 14th amendment, the relevant section of which reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis added)

This amendment was adopted in 1868. It has taken our federal government 145 years to recognize that this amendment covers LGBT people. Even so, the Supreme Court did not make gay marriage the law of the land–it only forced the federal government to recognize gay marriages in the various states in which gay marriage is legal. For the states in which it is illegal, the Supreme Court’s decision provides no help at all. So to a large degree, we have still gone a century and a half without fully recognizing that the state is obliged to show equal concern for the interests of its LGBT citizens. And let’s keep in mind that the notion that all citizens are worthy of equal protection was not itself part of the constitution until 1868. The US constitution launched in 1788–that’s 80 years of operation without this essential language. Yet the founders who commissioned a constitutional document without equal protection continue to be lionized by many people, particularly self-described “constitutionalists”, who analyze the quality of legislation by asking the question “would the founders have agreed?” The founders agreed with many morally repugnant things, such as leaving equal protection out of the original constitution.

We like to imagine that modern gay culture has only really surfaced in the last few decades, but there were LGBT people in the 19th century, in the 18th century, all throughout human history. Human beings were capable of reasoning in those times. There were surely writers and philosophers who realized that homosexuality was not harmful, that it ought to be permitted. Yet because the people failed to think of the implications of the very moral principles to which they were subscribing, we’ve spent decades as a society living in moral contradiction with ourselves. How many LGBT people have had to spend their entire lives in hiding because we let the majority decide that “equal protection” has nothing to do with them?

The Supreme Court’s decision may contribute to the alleviating of that future suffering, but it does not cure the ails of past people and those living with us today. The DOMA decision is not a victory for democracy, but an illustration of its failings–it permits injustice to go on and on, for generations, because an obvious and simple intellectual idea is resisted by an ignorant majority.

This is not to attack anyone’s religious views–the state cannot show preference for the Christian moral philosophy over any of its competitors, even if many of its members believe that philosophy to be true. To do so would be to show an undue and unequal concern for the interests of Christians over and above the concern shown for non-Christian moral philosophies. It is not necessarily ignorant to be a Christian, but it is certainly ignorant to be a Christian who believes that the state ought to universalize one’s own religious values at the expense of those who disagree with them.

Let’s not forget, either, that the DOMA decision was 5-4. Sonia Sotomayor joined the court in 2009. If her predecessor, David Souter, had retired just a couple years earlier, or if he had died, President Bush would have picked a justice who would have voted the opposite way, and we’d still be living with this piece of legislation, a piece of legislation that was signed by Bill Clinton, a man who was popularly thought to have been on the left. This very nearly did not work out well at all.

And then we have the tale of Wendy Davis. Once again, we have a group of Americans who believe that their religion’s special regard for human life ought to be universally enforced over and above other conceptions of what makes a being morally valuable. Only this time, an absurd procedural dance decides the outcome. It’s like watching some kind of bizarre, arbitrary tribal ritual.

The Texan conservatives propose to declare themselves to be right about whether human lives have intrinsic moral value by proving that more people agree with them than disagree with them? What does that have to do with right and wrong? Is it so strange for most people in a given place to be mistaken morally or philosophically? The story of the 14th amendment, of our inability to pass it in the first place for 80 years, and our inability to apply it to LGBT people for a further 145, illustrates the silliness of that.

But then it gets more absurd–we have this principle of might makes right, where the larger group of supporters always wins, but yet that system can be thwarted by a single individual who refuses to shut up? It is a system that is at once fallaciously majoritarian and autocratic, its rules are themselves a contradiction.

But then, this individual’s decision to keep talking can be overruled if she eats something, or urinates, or leans on anything, or talks about something that is in some small way unrelated to what the law is about? The autocracy of the filibuster is not challenged on the basis of its autocracy, but on the basis of strange and arbitrary technicalities.

And then, when they attempt to enforce these arbitrary rules, it is possible for those spectating on the proceedings to themselves intervene in them, shouting and cheering until it is impossible for the chamber to follow its rules? It’s as if “some people are making a lot of noise” is any good reason for any political action or inaction. How could it possibly be?

And then, once the clock strikes midnight, the refusal to shut up, accompanied by the mob cheering, is meant to make enacting the law impossible, because for some reason the session always has to end at midnight? Time is in charge of our laws now?

And then, the arbitrary rule about midnight is thrown out the window in an attempt to pass the misguided legislation anyway? This whole time, we’ve paid so much attention to arbitrary rules and procedures, but now it’s okay to just say “screw it” and do it anyway?

I’m glad the Texas GOP did not go through with their midnight work-around, because I think the law in question is morally vile. But all the same, there is not a single solitary point in this process in which any of what happens procedurally is in any way justifiable. The following are all fallacies:

  1. “The majority agrees with me” is a good reason for one’s opinion to become law.
  2. “I won’t stop talking” is a good reason for #1 to no longer matter.
  3. “She leaned on something/went to the bathroom/digressed” is a good reason for #2 not to matter.
  4. “I can’t hear you over the sound of the mob” is a good reason for #3 not to matter.
  5. “It’s after midnight” is a good reason for #2 to work.

At no point does choosing to ignore any one of those rules make things any more reasonable. The whole chain is a series of illogical propositions. The amazing thing is, when you really think about it, everything that happens in our government is eventually reducible to one of these fallacies or something similar. We live with numerous deeply flawed laws produced by a capricious and arbitrary system, and the whole reason we do it is ultimately fear–fear that if we tried to fix it, if we tried to build it on something more meaningful, we would inevitably produce some kind of hell. That can’t be right. There must be a better way to make these decisions, one that doesn’t cause so many people to suffer for so long while we wait for reasonable views to trickle down from the hallowed halls of academia to the general population.