The Supreme Court listened to argument in the second of two cases on marriage equality today. As occurred yesterday, the question of standing was an issue because like the Prop 8 case, proponents of anti-gay legislation asked the court to break with precedent. DOMA’s day in court went from bad to worse, when the GOP’s favorite argument: states’ rights came back to bite them in the ass
In this case, the proponent is John Boehner, who as Jason Easley reported, spent 3.1 million dollars to defend DOMA – using questionable methods to do so. There was lengthy discussion as to whether Republican House Leaders as the Bipartisan Legal Advisers Group (BLAG) even have standing as a party to this case.
In essence, their only argument is since the Executive opted against defending this law, the House should get to defend it. This is problematic, on several grounds. For one thing, the Executive is not obligated to defend an unconstitutional law. While Boehner’s rep made reference to the Executives duty to uphold the laws that includes the Constitution.
Even if one accepts that the House has standing on those grounds, it must have a real stake in the outcome of the case. In this case, Boehner et al obviously want the law to be upheld, but as Justice Breyer pointed out that isn’t enough to grant standing. Much of the discussion considered the Chadha case, but that case really isn’t comparable because the issue at hand was defending a legislative procedure, vs. an ordinary law – a point made by Justice Breyer at page 42 in the transcript. ”Chadha is really different because of course there is an interest in the legislature in defending a procedure of the legislature. Now, that’s — that isn’t tough. But this is, because the only interest I can see here is the interest in the law being enforced.”
Even if by some chance, BLAG survives the question of standing, observers suggest that Boehner’s case is on shaky ground – based on the GOP’s favorite argument: states’ rights. This time, we paid 3 million dollars to watch Clement try to turn the states’ rights argument on its head. In essence, he argued that as long as the Feds don’t dictate how the states define marriage, the Feds can treat marriage differently than the states would. Therefore, for some people, they are married under state law, but not necessarily recognized as married under Federal law. So all is good right?
This is where Boehner’s ideological opposition to marriage equality hits thebrick wall of reality and more to the point, that states’ rights is not limited to if or when it suits the GOP’s ideology. Justice Kennedy entered the discussion with the crux of the problem, faced by Edith Windsor and millions of Americans.
“But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
The 1,100 laws in question touch on so many aspects of life that, DOMA, serves to remind people that some marriages under DOMA are more equal than others.
Kennedy went on to question Clement’s assertion that the objective of DOMA was to establish a uniform application of Federal law, on which we saw a response reminiscent of Mitt Romney.
JUSTICE KENNEDY: Well, but it’s not really uniformity because it regulates only one aspect of marriage. It doesn’t regulate all of marriage.
MR. CLEMENT: Well, that’s true but I don’t think that’s a mark against it for federalism purposes …
Except Clement’s Federalism argument ultimately doesn’t stand up. Later in argument, Clement claimed that, in this case, establishing uniformity meant treating all same sex married couples the same for the purpose of estate taxes. By making that argument, Clements actually proved the inherent problem with DOMA. As Justice Sotomayor pointed out the result of DOMA is that married couples are treated differently. He got deeper in the quick sand in his response to Justice Sotomayor’s observation.
MR. CLEMENT: But the — the only way they are different is because of the way the State law treats them.
So on one hand, Clement argued that DOMA was about rectifying a lack of uniformity in state law, but by treating same sex couples differently, it does so because the states treat them differently.
He went on to contradict himself on the relationship between the States and Congress when it comes to marriage equality, as Justice Kennedy pointed out.
JUSTICE KENNEDY: But I — I understand the logic in your argument. I — I hadn’t thought of the relation between Section 2 and Section 3 in the way you just said. You said, now Section 2 was in order to help the States. Congress wanted to help the States. But then Section 3, that Congress doesn’t help the States which have come to the conclusion that gay marriage is lawful. So that’s inconsistent.
Later the Court smacked Clement down when he suggested that somehow affording same sex couples the same benefits other married couples get is somehow providing same sex couples with special benefits rather than the reality that DOMA creates two classes of marriage – one for “traditional” couples and a less equal version for same sex couples.
JUSTICE GINSBURG: They’re not — they’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question. It’s — it’s — as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.
In sum, Justice Kagan stated the ultimate purpose of DOMA.
So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some - even if they’re not suspect — with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?
I guess the question that this statute raises, this statute that does something that’s really never been done before, is whether that sends up a pretty good red flag that that’s what was going on.
Indeed, we know exactly what’s going on here and we have known for some time. DOMA’s purpose is the polar opposite ofcreating uniformity for Federal purposes. It creates two classes of marriage – depending on the sexual orientation of the couple, or as Justice Ginsberg described it so well – relegating same sex couples to a skim milk marriage.
The original support for DOMA wasn’t about a desire to create uniformity in law, nor is that the true objective of John Boehner’s decision to spend tax dollars to defend it. The House Report from 1996, when DOMA was passed, says it all: Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.
Clement tried to dance his way out of this by arguing a law can’t be struck down if a couple of legislators “may have had an improper motive.”
In reality, since the improper motive is reflected in the results of the legislation, we can and we should strike DOMA down. If today’s argument reflects the Court’s thinking on this case, that’s exactly what will happen.
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