DOMA Didn’t End, It Wasn’t Struck Down, and Stop Saying That It Was

Unless you have been living under a rock the last couple of days, you likely know that the Supreme Court of the United States (SCOTUS) recently struck down part of the Defense of Marriage Act (DOMA). However, if you have been reading about the decision in many online sources, you may have been misled.

In many of the news outlets that I have been looking at over the last 48 hours, I have seen one HUGE mistake being reported again and again. This mistake is news outlets reporting that DOMA has been repealed or struck down.

 

Sadly, this isn’t what actually happened. The ruling that the SCOTUS handed down did not strike down the entirety of DOMA, but rather, the ruling struck down a specific section within the larger law. Specifically, the ruling by the SCOTUS struck down Section 3.

(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

`Sec. 7. Definition of `marriage’ and `spouse’

`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:

`7. Definition of `marriage’ and `spouse’.’.

Assuming that your legalese is up to scratch, you know that Section 3 of DOMA was the section of the law that was being used to stop same-sex couples (i.e. those who have been legally married in a state which allows same-sex marriage) from accessing the same benefits that are given to heterosexual couples. So, by striking down this section, the SCOTUS paved the way for a lot of really positive things… in the states that have legal same-sex marriage.

In these states, the federal government can no longer deny access to the benefits of marriage based on the fact that the marriage is between two members of the same-sex. This means that, unlike the day before the decision, immigration, pension, healthcare, and tax benefits have to be extended to same-sex couples in the same way that they are in heterosexual couples.

Needless to say, this is great news, even if it only truly impacts a select subset of the LGBT subset of the population of the US.

However, what would have been ever greater news would be if the entirety of DOMA was struck down. If this were the case, not only would Section 3 (the federal ban on benefits) be removed from the books, but so would Section 2.

(a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:

`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof

`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:

`1738C. Certain acts, records, and proceedings and the effect thereof.’.

This section of DOMA is the section that bars the federal government from enacting any legislation that would open the ability to marry up to same-sex couples. Basically, it makes it so that same-sex marriage, as it is at the moment, must be won on a state-by-state basis.

Should this section had fallen to the pen of the SCOTUS as well, the federal government could have, and likely would have, drafted a bill aimed at making same-sex marriage legal nationwide. While this would not have likely been successful (as you could imagine given the Republican controlled House), it would have almost definitely been stalled for the remainder of the Obama presidency, giving the Democrats strong political fire power come election time.

What is Sex? No, Seriously.

Let’s Talk About Sex, Baby
Photo by: Jean KOULEV

A while back, I wrote a post on my personal blog about how my lack of a definition for sex (and, thus, sexuality) caused me issues understanding asexuality as it related to me. So, I thought that I would try to examine the topic a bit more closely.

What is sex?

This is a question that I have been struggling with for years without any formal answer to it. When I was younger, I thought that sex was simply the act of one man penetrating one woman with his penis. But as time went on, my definition grew to include people who identified as lesbian, gay, or bisexual. When I did this, my definition moved from centering the phallus and the act of penetration to centering sexual touch and orgasm. In this definition, I thought that sex was an act between two people with the goal of one or both of them having an orgasm.

This then shifted again as I started hearing about the possibility that more than two people could be involved in sexual activity at a time, and it shifted again when I found out that consent was an active process that is continuous, shifting, and explicit. At this point, the definition was something to the effect of “sex is an act between two or more actively consenting adults with the goal of one or more of them having an orgasm.” In this definition, the acts themselves aren’t really defined, you could really have a thing for shoes, masturbate looking while licking someone else’s shoes, and that would be considered sex (in this definition). Likewise, sex would also include touching, groping, massaging, or penetrating with the goal of, orgasm.

But then things shifted again. As I started reading more about sex positivity I learned about the move by many to remove orgasm as the center of sex. The reason is that there are many people in the world who enjoy sex but do not have the ability to have an orgasm. This doesn’t necessarily make it so that they are broken people or that they have a sexual dysfunction or something, but instead that they have sex like everyone else, just without orgasm.

This, truthfully, fucked over my definitions of sex. If it isn’t centered around particular parts of the body or particular acts or particular goals. What is left to define sex? It is just a case of “sex is what I call it?” Or, even worse, “I know it when I see it?”

So, hitting a bit of a bump in the road at this point, I did what every 25 year old person would do when faced with this question: I asked my mother!

After my mother stopped laughing at the fact her 25 year old, married daughter asked her this question, the conversation continued much like the development of my personal definition. We went through definition after definition countering each one with an example of sex that didn’t fit. Eventually, she too got stuck. But throughout my discussion with her, the conversation seemed to center around intimacy-which she defined as physical and emotional closeness-and genital manipulation.

Then I went over to my facebook, and I started asking my friends about it. Again, this conversation took much the same form as the last, moving from definitions based solely around penetration towards more broad definitions. For a while, however, there was one definition that stuck (until it was ultimately defeated yet again). This definition is that sex is a consensual act between two or more people which includes penetration and/or orgasm.

While I do still have issues with both of those ideas, somehow the combining of them seemed to make a lot of sense. But shortly after this was posted, someone mentioned that sex is something that you could do by yourself and should be about something pleasurable. I really like this idea that sexual pleasure or sexual arousal is a part of the definition, but this reconstruction of sex as something that you can do alone, without penetration or orgasm, really sent the discussion all the way back to square one.

While these discussions didn’t really get me the definition that I was looking for, I did find some things that seem to be rather important to the definition, should there be one. Placing consent and pleasure at the center of the definition, as the place that all sexual activity originates, is one such idea I found to be extremely important.  Further, the fact that emotional and physical intimacy seem to be recurring themes, while not perfect by any means, suggests that these also play a role in sex in someway, even if it is just a socialized, scripted one. And lastly, the idea that orgasm and penetration, while both very problematic defining attributes of sexual activity, seem to be very culturally linked to the idea of sex as a whole.

Being that I had a long trip of self-discovery prior to asking others for their input, I am sure that I am biasing the analysis in some way. But, more than that, I am not really surprised that the conversations seemed to center around what it did. Rather, I am surprised that, while everyone I asked seemed to treat the question in such a blasé manner, no one had a clear, consistent definition which they stuck to.

But, what are your thoughts on the matter?

Given that I have yet to come up with a consistent definition of what sex is, perhaps you can help me out. Tell me your thoughts or the definitions that you use in the comments below. Perhaps, with your help, we can plug this whole in the English language once and for all!