My more conservative readers won’t be pleased to hear this, but I was glad to hear that a federal judge struck down the Defense of Marriage Act ("DOMA") last Thursday.  Not that it’s unvarnished good news, but I think it moves the debate in the right direction, namely getting government out of people’s personal lives.

In his ruling, District Judge Joseph Tauro determined that the federal government’s pronouncement that marriage is between one man and one woman violates the Equal Protection clause of the 14th Amendment by virtue of preventing certain people from having access to federal benefits which married people are entitled to.

The case was brought by seven same-sex couples and three survivors of same sex couples, including the “spouse” of former Rep. Gerry Studds (D-MA).  In each situation, at least one member of the couple had applied for federal benefits for his or her partner, only to be denied by the federal government on the basis of DOMA’s definition of marriage.

Claimed benefits included medical, dental, and Social Security for living same-sex couples, and retirement and death benefits in the cases where one of the “partners” has died.

All plaintiff’s claims except one, including the right to file taxes jointly, were granted by the judge whose view is summarized in one particularly dramatic sentence: “This court is convinced that ‘there exists no fairly conceivable set of facts that could ground a rational relationship’ between DOMA and a legitimate government objective.”

The judge then embarks on a lengthy analysis of DOMA, essentially arguing that its goals bear no relationship to its actual effect but that even if that were not the case, DOMA is unconstitutional.  For example:

And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.  What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable.  But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” And this the Constitution does not permit.

That’s enough about the judge…you get the idea.

Conservative groups argue, and I think they have a decent point, that the government mounted an especially weak defense of DOMA during the case, not least because Barack Obama has said he opposes the law.

I think there’s a fair chance the judge’s ruling will be overturned on appeal.  It’s strikes me as a 50/50 proposition.

So, here’s what I like about the ruling and what I don’t like:

What I like is anything that moves the federal government out of our private lives.  I’ve heard the arguments about a compelling federal interest in encouraging population growth which, by definition, requires at least heterosexual couples and preferably marriage.  But I’m not convinced this government interest is strong enough to justify federal regulation.

So, to the extent that this moves a major social issue to the states, I’m for it.  I feel the same way about abortion and drug legalization.

There is NOTHING in the Constitution which gives the federal government authority in any of these areas and the sooner we get the government out of our bedrooms, the better.

What I don’t like is that the ruling will force people who truly find homosexuality immoral and sacreligious to pay, through their taxes, for same sex benefits for federal employees who have same-sex partners.  (Somehow, even though I said it before, I have a really hard time calling one guy another guy’s “spouse” or “husband".  Would one of them be the wife?  If so, I guess it’s the one with the fashion sense…)

I do, for example, support the idea of someone being a (legitimate) concientious objector and avoiding the draft, during the time that this nation had (and might in the future have) a draft.  If people have true religious beliefs, they should not be forced to support or pay for something provided by the government – but with our money – which they believe to be immoral.  This includes abortions and same-sex benefits.

To be clear, my primary objection to this is at the federal level.  If a state wants to implement something different, well it’s easier for a person to move from one state to another than to leave the country. I would hope to leave in a state where abortion is legal, but not government funded, and the same for drugs and same-sex unions. State-level experimentation allows a functioning “laboratory of democracy” as our founders intended.  Experiments that are effective and efficient will be repeated elsewhere, to broad benefit. And, with luck, experiments that fail won’t be repeated in too many other places, much less nationally.  (The example of Obamacare passing despite the obvious failure of socialized medicine in Massachusetts is certainly one which could cause people to wonder whether I’m too optimistic about bad ideas not spreading.  But at least, in Ross’ world, Obamacare would be impermissible at the federal level anyway.)

Back to same-sex unions:  I believe that government should have nothing to do with marriage. Any two people should be able to enter into any contract they want to.  People should be able to assign inheritance and other similar rights to anyone they marry.  Any church, synagogue, or other place of worship should set their own standards as to whether they will be willing or unwilling to marry two people of the same gender.  I also believe private companies should be able to make their own decisions as to whether they will offer same-sex benefits.  (I maintain my fundamental belief that private people and companies should be allowed to discriminate for any reason and that government should not.)

At the moment, however, if Judge Tauro’s ruling were to be upheld, the impact would be to allow government-funded – which is to say taxpayer-funded – benefits for same-sex partners of federal (and other government) employees.  Once that horse has left the barn, it will never go back in.  Therefore, for those who feel that funding such benefits violates their religious principles, the best they’ll be able to hope for is to minimize those benefits.  And this brings us to the other potential positive from the judge’s ruling:

It gives the many Americans who don’t want to fund same-sex benefits strong motivation to decrease the size of the federal government as well as the over-generosity of its compensation packages.  The fewer employees the federal goverment has, the fewer dollars will be distributed to same-sex partners. And the sooner the federal government gets its bloated pay packages down to something reasonable – as a percentage of the total compensation, including retirement, health, etc. of similar private sector jobs, and keeping into account the fact that it’s very hard for a federal worker to get fired – the better it will be for everybody.  At least everybody except those overpaid workers getting fat off the teat of the rest of the taxpaying citizenry.

Judge Tauro’s ruling may not be upheld, but something like it probably will be some day.  It’s a canary in the coalmine for both social and fiscal conservatives.  It’s time to learn the lessons of the ruling:  We need to get the federal government out of marriage, and cut the size and cost of government to minimize not just our tax bills but how much of our tax bills are going to things we deeply don’t want to pay for.

Addendum: For the record, same-sex benefits don’t particularly bother me. I don’t care one way or another if a person is gay. I think it’s slightly odd given that nature tends to want to reproduce, but I don’t think there’s any aspect of it subject to different moral analysis than any other partnership. For me, therefore, same-sex benefits are not in the same league as taxpayer-funded abortion which, even as a pro-choice person, I find utterly unacceptable.

I do, however, understand that certain people are vehemently opposed to their money funding same-sex benefits.  To the extent that it’s just small-minded bias, it’s hard to be sympathetic. But for those who truly find it offensive to their religious convictions, I believe those convictions should generally take precedence over government largess, particularly in funding aspects of the federal government which are not authorized by the constitution.  That means, for example, that a pacifist does not have the right to refuse to pay taxes because we have a military.  Defense of our nation is the primary function of a federal government and contribution to the common defense is our common responsibility.