Batten down the hatches. This is going to SCOTUS:
A federal appeals court Thursday declared that the Defense of Marriage Act unconstitutionally denies federal benefits to married gay couples, a groundbreaking ruling all but certain to wind up before the U.S. Supreme Court.
In its unanimous decision, the three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston said the 1996 law that defines marriage as a union between a man and a woman deprives gay couples of the rights and privileges granted to heterosexual couples.
Two of those judges were Republican appointees. Now to clarify one thing: the part of DOMA that was struck down was on federal benefits. States that do not recognize gay marriage would not be required to if the Supreme Court were to uphold the ruling. And the Court declined to review whether there is a constitutional right to marriage.
I kind of like this decision, actually, which crosses me as very federalist. It allows the states to continue to define marriage as they want but requires the feds, as far as they address marriage, to recognize whatever the states have. I can live with that and I suspect most federalists can as well. I suspect most gay people would be fine with it, too. But this won’t be final until SCOTUS makes a decision.
While I’m sympathetic to the Libertarian argument that the government should just get out of marriage, I don’t see this as really practicable. Like it or not, government is involved in marriage and sort of has to be. When someone dies without a will, the disposition of their property has to be determined by law, not whoever shows up with a trailer. When someone is sick or incapacitated and has not left written instructions, someone has to have power of attorney. Custody of children has to be determined by legal agreement or a neutral arbiter, not whoever has them in their home at the moment. Family and probate courts are an ugly business. But the alternative, in the absence of previous legal agreements, is chaos and heartache.
I would like to see the government back out of it as much as possible and I think there’s room for that. Our tax code could be simplified so that marriage doesn’t matter (the tax benefit to married couples being a key part of the legal argument the First Circuit addressed). Wills and inheritances and death benefits can be given to any beneficiary one cares to nominate (many default to legally recognized spouses). Adoptions could be strengthened to eliminate custody battles between families and gay partners. I don’t think there will ever come a time when government can ignore marriage. But I do think we can reduce its footprint to a minor inconvenience.