Opinion

You want a ‘permissible federal interest’ for DOMA? How about cold, hard cash?

Bob Maistros Chief Writer, Reagan-Bush '84 campaign

Oh, well. Another season, another novel interpretation of the Constitution to advance the cause of so-called same-sex marriage.

Back in the winter, the Ninth Circuit Court of Appeals whistled a rather imaginative “over-and-back” penalty on the electorate of California. The Judicial Panel from Mars ruled that the state’s Proposition 8 referendum was unconstitutional because, once having extended the right to marry to gays — an action taken by a court, by the way, not the voters — it was necessarily an act of “animus” to take it away.

Oh.

And last week, their First Circuit brethren tossed out portions of the Defense of Marriage Act, passed by overwhelming majorities in the House and Senate and signed by President Bill Clinton. On what grounds, you might ask? Well, after raising and knocking down the straw man of “tradition,” the court maintained that “Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

Hmm. No “permissible federal interest,” you say? That’s a new one on me.

But, OK, I’ll play. What about the ultimate “federal interest”: cold, hard cash?

Because in case the good folk on the Boston bench haven’t noticed, there is not only a raging recession going on out here, but also a rather nasty fiscal crisis that is expected to extend, say, some seven decades into the future. At the heart of the problem: entitlement programs.

Social Security, according to its trustees’ latest report, is expected to go into the red around 2033 and tally up a deficit of $8.6 trillion over the next 75 years. And the Medicare Trust Fund is expected to dry up even sooner, somewhere around 2024.

And why are these programs running out of Benjamins? Social Security’s chief actuary has written, “This increase in cost results from population aging, not because we are living longer, but because birth rates dropped from three to two children per woman.”

In other words, it’s the fertility, stupid! America is headed for the same demographic winter that now has the Japanese economy freezing over and Europe not far behind.

Over the last two years, our population has grown at the slowest rate since the Depression. According to the Population Reference Bureau, the number of people under age 18 — that is, future taxpayers — actually declined between 2010 and 2011, reversing a longtime trend. Meanwhile, America’s fertility rate has dropped below the replacement level.

In short, we need to reverse these trends and generate more babies to support an aging population, and pronto. Now, heterosexual couples can produce children, and married heterosexual couples produce more of them.

Meanwhile, gay couples can adopt and raise other people’s children (a rather precarious social experiment, a discussion of which I shall leave for another day). But, as a simple and uncontestable fact of biology, they cannot produce any of their own.

So there remains, in fact, a fairly compelling federal interest — promoting fertility and thereby a growing workforce — in conferring on heterosexual couples special federal benefits to encourage marriage. Even if one of those perks — spousal Social Security benefits — is rather remote for most newlyweds.

In contrast, providing same-sex couples the substantial spousal benefits conferred by Social Security and the tax code would generate new drains on already massively strained programs and the bursting federal budget — without any hint of a corresponding financial benefit whatsoever. That fiscal reality creates another compelling interest — mayhap even a “permissible” one — in denying federal spousal benefits to these couples even when individual states deem them “married.”

Posh, you might argue. The costs of extending spousal benefits to same-sex partners will be small because so few of them actually get hitched. In fact, estimates place the number of same-sex marriages at fewer than 75,000 since Massachusetts’ high court first legalized them in 2003.

Careful, there. Same-sex marriage proponents would get stuck in one of two ways in arguing this position. On one hand, the continued lack of gay interest in entering marriage, as opposed to clamoring for it, appears to underscore traditionalists’ arguments that the whole gay marriage movement is a sham aimed at achieving acceptance of the broader homosexual agenda. On the other, if the effect of recent rulings is to normalize same-sex matrimony, the number of marriages will surely increase — along with the costs to the Treasury.

The truth is that, as the court recognized, Congress is not denying same-sex couples federal benefits pertaining to marriage because of some real or imagined hostility to them or to homosexuality in general. Rather, there is a real fiscal cost to extending federal benefits to gay couples, in contrast to the vital fiscal gain from granting them to married heterosexual couples.

To rule otherwise is essentially to take the power of the purse away from the legislative branch. Impermissibly, one might maintain.

Bob Maistros was the chief writer for the Reagan-Bush ’84 campaign, a former Senate subcommittee counsel and a longtime public relations advisor for companies ranging from AOL to MTV to XM Satellite Radio. He now offers biting satire based on insights gathered at the front lines of headline-making corporate crises, political contests and the culture wars.