1) DOMA Laws violate sacred texts. Many of the arguments against gay and lesbian civil unions or marriage appeal to biblical texts from Genesis, Leviticus, Romans, or I Corinthians. But such arguments impose upon the texts a twentieth century understanding of sexual identity alien to the Jewish or Hellenistic cultures in which these texts arose.
2) DOMA Laws elevate heterosexual marriage to idolatrous status. In some communities of faith, defending “marriage” has become all but an item of confessional status (it is absent from any historic Christian Confessions). This arrogates to a majority – heterosexuals – special privileges (economic, social, and spiritual) not available to sexual minorities.
3) DOMA Laws scapegoat gays and lesbians. As Rene Girard argues, scapegoating is a chief manifestation of religious violence. It is difficult to see what real threat is posed to heterosexual intimacy, much less to civil society, by the desire of homosexuals for similar rights. It is easy to see how DOMA laws organize consent over and against a relatively voiceless and powerless group.
4) DOMA Laws sacrifice homosexual rights, and damage civil society, in the interest of religious purity. One measure of the justice in any society is how well it cares for vulnerable members. Sexual difference marks individuals as both vulnerable and “dangerous.” And as Mary Douglass showed, any “danger” against which a law must defend is invariably constructed around some purity interest. DOMA Laws require gays and lesbians to sacrifice rights others take for granted, and render them subject to legalized forms of exclusion and discrimination. They damage the deep trust that is the most important social practice in civil society.
5) DOMA Laws confuse legislation with religion, and violate the First Amendment, as Ann Pellegrini and Janet Jakobsen have argued. It is entirely permissible (although ethically subject to scrutiny) for private communities to shape the boundaries of association in whatever ways members agree upon. It is a violation of the First Amendment’s protection of free association to inhibit by law some forms of association that pose no harm to the common good, and a violation of the freedom from an established religion when religiously-inspired exclusions are written into law.
6) DOMA Laws perpetuate an association of sex with power, and thereby do damage to any sacramental sensibility that might remain in association with even heterosexual marriage. As Hendrik Hartog and other historians have shown, marriages have shifted in the modern era from patriarchal patterns of coverture to social contracts in which couples seek mutual fulfillment. Such contracts might be compatible with a sacramental sensibility, since they entail pledges of sexual fidelity and commitments to share social resources and responsibilities, along with (one might argue) other gifts of God. DOMA Laws associate sexual fidelity with legislated forms of coercive power, and inhibit the deep trust and mutuality intrinsic to modern (and sacramental) marriage. They establish hierarchies of relationships, and associate heterosexual unions (and sexual practices) with dominance.
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