I membri del Congresso, o meglio della House of Representatives dove il Defense of Marriage Act del 1996 (DOMA) ebbe origine, andarono probabilmente troppo in là nelle loro giustificazioni della legge stessa – facendosi autogol. Nella difesa del matrimonio etero-sessuale, essi fecero infatti appello a motivazioni non solo giuridiche ma anche morali e quasi-religiose. E si proposero esplicitamente di imporre queste motivazioni agli Stati – al fine di scoraggiarli ad adottare le same-sex marriage laws. La decisione della Corte suprema di ieri (United States v. Windsor, June 26, 2013), o meglio della maggioranza che l’ha scritta, lo nota con disapprovazione, e un po’ di acida irritazione, in un passaggio della sentenza. Dove si dice:
– The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. [The House bill] is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.
– The arguments put forward by [the Bipartisan Legal Advisory Group of the House] are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted. The congressional goal was “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment.