Saturday, March 30, 2013


After arguments in the landmark gay marriage cases were heard before the Supreme Court, it seems that the 1996 Defense of Marriage Act (DOMA) is in jeopardy of falling as five justices appeared skeptical of its Constitutionality. The Fab Four—Justices Ginsburg, Breyer, Sotomayor, and Kagan—could not seem to reconcile DOMA with the Equal Protection Clause. Meanwhile Justice Kennedy expressed his concern about issues of federalism in exchanges like this one with conservative DOMA defender Paul Clement:
MR. CLEMENT: I think -- I think there is so clearly is a Federal power because DOMA doesn't define any term that appears anywhere other than in a Federal statute that we assume that there is Federal power for. And if there is not Federal power for the statutes in which these terms appear, that is a problem independent of DOMA, but it is not a DOMA problem. So I will assume we have Federal power. Then the question is --

JUSTICE KENNEDY: Well, I think -- I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.

MR. CLEMENT: And it doesn't have the authority to regulate marriages, as such, but that's not
what DOMA does.
Except Clement is dead wrong. Of course DOMA regulates marriage. Read the guts of the Act yourself:
[From Section 2:] 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.

[From Section 3:] 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.
That is federal regulation... if that is not regulation, then we have lost the meaning of the word (and so-called conservatives have a much more expansive view federal power than they admit). Still, assuming the Court decides to rule on DOMA, Kennedy's critique of DOMA does not promise a watershed moment for gay rights in the same way that a 14th Amendment critique would. As Michael McGough writes for the LA Times, Kennedy's federalism tack sets the DOMA case at odds with the previous day's case on California's Proposition 8. If Congress overstepped its bounds defining regulating marriage as the union of heterosexual couples only, would it not overreach in the same way by demanding that states accept homosexual unions as well? Solicitor General Donald Verrilli argued it would not, but Chief Justice John Roberts was unconvinced. So, while some pro-marriage equality writers crowed that "the anti-gay movement is humiliated," others like David Weigel were predicting the scenario of "endless state-level gay marriage campaigns."

Far better for SCOTUS to follow the lead of Elena Kagan and the other liberals, who see DOMA for exactly what it is: discrimination. In fact, Kagan caught Clement unprepared by quoting language from the 1996 debate:
JUSTICE KAGAN: Well, is what happened in 1996 -- and I'm going to quote from the House Report here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality." Is that what happened in 1996?

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute.
Indeed. Of course much time would have been saved if everyone had listened back in 1996 to the stunning speech of Georgia Representative John Lewis, who described DOMA as discriminatory and irrational on the floor of the House. Instead the anti-gay prejudice of Congress carried the day. In the 1996 Report of the Judiciary Committee to the House, under the fifth heading "The Governmental Interests Advanced by H.R. 3396 [DOMA]" comes sub-heading B: "H.R. 3396 Advances the Government's Interests In Traditional Notions of Morality." It reads:

For many Americans, there is to this issue of marriage an overtly moral or religious aspect that cannot be divorced from the practicalities. It is true, of course, that the civil act of marriage is separate from the recognition and blessing of that act by a religious institution. But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect. Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.

That is not very nice. Usually when you ascribe "moral disapproval" to the identity of class of citizens, it is safe to say that discrimination is exactly what's on your mind. By comparison, consider the sanitized brief of the Bipartisan Legal Advisory Group of the US House of Representatives (which goes by the unfortunate acronym BLAG and, in this case, is not bipartisan at all) in the current case defending DOMA. (BLAG did this because President Obama's Justice Department refused to defend the law.) No mention of immoral behavior is to be found! Instead, the brief argues that the federal government could "rationally retain the traditional definition" of marriage to provide "a stable structure to raise unintended and unplanned offspring," (incidentally something that happens quite a bit when abstinence is the only form of birth control in your education program), and to encourage "the rearing of children by their biological parents," their mother and father. Social science; nothing too Judeo-Christian about all that.

But everyone knows that language about "preserving the traditional institution of marriage" is code for a moral argument, so the BLAG brief wasn't fooling anyone. Certainly Justice Antonin Scalia could see through it all... he had predicted as much in his blistering hate-filled dissent in Lawrence v. Texas, the 2003 case about an anti-sodomy law. Taking issue with Justice Sandra Day O'Connor's concurring opinion, Scalia wrote:
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. 
Scalia then went on to write about the slippery slope to gay marriage after Lawrence (emphasis mine):
...The Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Do not believe it.... Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.
Right Niño. Could not have said it any better. If it's not about immorality, what justification could there possibly be for denying the benefits of marriage to homosexual couples?

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