Even Reason Magazine doesn’t understand DOMA
At http://reason.com/archives/2011/05/12/leviathans-lawyers#comment_2287071 was a bizarre article by Radley Balko. Basically, it’s a nice article about the ever growing too big power of the government, as Reason is wont to do. But it starts off with DOMA, and then somehow spins out of control with analogies to criminal cases, forfeiture laws, the power of prosecutors, and the defense or enforcing of laws, you know, the usual. And the comments were just as all over the place as poor Mr. Balko was. For by using the DOMA situation and Obama’s “non-defense,” but “enforcing” it as a starting point, Balko simply conflates apples and oranges — with rocks. DOMA is a rock. For instance, how does one “enforce” this law? What prosecutorial power is given to anyone under it? No, it’s a law defining a word and its synonyms and whom in America might be allowed to use the word or synonyms to describe rocks, (Aka, gay couples) and then pretends that the rocks aren’t there. So I posted this there:
>I think what you’re all missing is that all the “analogies” are wrong. DOMA is not a “criminal” law — it stops no crime, it prevents no crime, it penalizes no crime. Nor is it a law which affects everyone, as say, the Endangered Species Act does, or the forfeiture laws, or Miranda, affect everyone in the nation who might wind up afoul of its provisions. Nor is DOMA some situation between two citizens over the meaning of a law as it affects individuals. Nor is DOMA somehow an expansion or limitation on prosecutors’ powers and privileges, or duties to enforce laws broken. Indeed, it’s quite impossible to “break” DOMA for it doesn’t create anything to be broken. Nor is it really even a law which protects anything whatsoever; and if anything, damages people. Certainly it hasn’t “Defended” marriage, nor preserved it, or done anything whatsoever to affect marriages such as they exist between guy & gal.
Nor are their “adversaries” to the law. Unless you want to conclude that the law and it’s defense is really one big law case called “Hetero citizens and the Federal and State Governments v. gay citizens.”
No, DOMA is a law that tells gay people we are not allowed to use a word, nor to have any synonym used, to recognize the reality of gay unions. It tells gay people that we’re not welcome under “family law,” but doesn’t stop us whatsoever from using commercial and contract law to effect the same purpose, which is deal with the financial and legal reality of families. Indeed, since gay couples must use commercial law, and we do, to do all things necessary for our unions and property within them, the government already recognizes the couples. But not romantically, just business partners. The law in effect criminalizes that which is done, but without penalty, by levying a “penalty” on word usage by forbidding the use of a word in the English language to a small group of people. There’s not even a penalty for using the word “marriage” by a gay couple — it’s only the recognition of the use of the word. The law in a sense, simply states that what is real will not be recognized.
The law does nothing more than what a bill of attainder does — it singles out a group of people, it levies a penalty, and it does so without any judicial proceedings. For it is a “crime” I guess, for a gay couple to say we’re “married.” The penalty is the higher taxes and the more legal expenses incurred to effect our families such as we have them within commercial law. And no gay person was ever brought to court under the law and told not to be a couple; it’s not even possible. Indeed, the law goes so far as to say, even if not actually spelling it out, that there’s no such thing as gay couples.
And it is a law that is only applicable to a tiny group of people and not the nation as a whole.
It is a very weird law. And it is indefensible on so many grounds it’s not funny. Not to mention that gay folks are actually paying for the defense of the law against us. And while anyone deserves a lawyer, and I suppose the government does too, sometimes a lawyer has to say to the client, “I’m sorry, but you have no case.” And in this case, the People of the US v. Gay people (For no individual can be sued or arrested under DOMA it must be against all of us as a class) — there is no case.
Pick on the solicitor general or Obama all you want; DOMA is the “no gays exist” law. And it’s repugnant and intellectually dishonest. What will someone defend it as? Their only “defense” is that somehow, with any judicial proceedings whatsoever, gay people as a whole but not individually are “attacking” someone or something. Yep, weird.
But find better analogies. >>
And that’s what I in between setting up my birthday party; geez.
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