The Losing Argument for the Defense of Marriage Act

There's more preamble from the Book of Clement. He argues:

"[J]udging the constitutionality of an Act of Congress is the gravest and most delicate duty that th[e] Court[s] [are] called on to perform." The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States." Furthermore, "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people." Therefore, the Supreme "Court does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is [constitutional]."

The House argues that the federal courts should give great deference to the Marriage Act -- that the law should be evaluated under the least onerous legal standard of review -- because it does not, by its terms, ban same-sex marriage. Instead, the argument goes, the federal law "[d]efines marriage only for purposes of federal benefits and burdens." Clement told the First Circuit: "Congress thus 'did not penalize' same sex couples; it simply 'decide not to offer them a special inducement.'"

It was "rational" for Congress to do this, Clement argues, to help maintain the "status quo" on marriage in the face of state supreme courts (like this one in Hawaii in 1996) that were coming around to the notion that bans on same-sex marriage violated equal protection guarantees in the Consituition. Judge Tauro, Clement wrote, "failed to give any weight to the fact that the 'status quo' preserved by DOMA is a defining element of the most foundational institution in our society, which element has existed for all of history."

Next, Clement argues that Congress can always choose to protect the "public fisc" by excluding some groups. "In statutes apportioning benefits," he wrote, "saving money by declining to expand pre-existing eligibility requirements is itself a rational basis." And here's how the House of Representatives, which will be in session only 109 days this year, makes the financial argument supporting the Defense of Marriage Act. Clement wrote:

It certainly was reasonable for Congress to conclude that maintaining the traditional definition of marriage would save taxpayers' money, especially because, at least at first, same-sex couples who stood to benefit from marital status would be far more likely to self-identify as married on federal forms than same-sex couples who stood to lose federal benefits. That savings to the federal government in maintaining the traditional definition is certainly evident with respect to the Gill Plaintiffs, who seek many thousands of dollars from the government based on DOMA's alleged unconstitutionality.

What follows next in the House's brief, for dozens of pages, is enough to generate another full column. Under the sub-title "DOMA Furthers the Government's Interest in Encouraging Responsible Procreation," Clement makes the argument that was so integral to (and so thoroughly rejected in) the federal courts' analyses of California's Proposition 8, the 2008 ballot initiative which sought to ban same-sex marriage in the Golden State. Clement wrote:

To the extent that marriage was designed to provide an incentive for opposite-sex couples facing an unplanned pregnancy to raise the child in a stable two-parent environment, it is rational not to extend the institution to couples without the same ability to produce unplanned offspring... While some same-sex couples have children, the overwhelming number of children remain in opposite-sex households (or are the product of opposite-sex couples but in single-parent settings), and Congress rationally could focus its efforts on the latter by providing incentives for opposite-sex couples to wed.

So a statute designed to exclude a group from federal benefits actually was all about creating incentives for opposite-sex couples. Do more opposite-sex couples get married or have children because same-sex couples cannot get federal benefits? Really? The problem with Clement's argument is that it by necessity it seeks to bring the federal courts back to 1996. We know what Judge Tauro thought of that idea in the context of DOMA. And we know what U.S. District Judge Vaughn Walker (another Republican appointee, by the way) thought of it in the context of Prop 8. It's a losing argument.

POSTSCRIPT

If you were explaining the past week's arguments to an alien -- and by alien, I mean someone from Outer Space -- it would be hard to get around the contradictions here. In America today, a federal law designed to reshape the health care market breaches some "fundamental" right to be free from federal oppression. But a federal law that punishes people who want to marry their same-sex partner is worthy of obeisance from the judges. An economic law that does not discriminate is supposed to be given less judicial deference than a moral one which does. I know the standards and precedents are different. But on every level, this is crazy.

Whatever happens to Clement and the health care law, I think he's going to lose here at the 1st circuit. The wind is out of the sail of the Defense of Marriage Act. The jig is up. Judge Tauro simply had the courage to say what many other federal judges, on both the right and the left, have long thought. And there is a direct correlation between the Tauro ruling and the Administration's decision to abandon ship. So now what? In the big picture, it matters less whether the DOMA supersedes state law than whether the DOMA itself violates the Constitution, which the Supreme Court would likely say it does.

Why am I so certain? Because Justice Anthony Kennedy, the potential fifth vote to kill the Defense of Marriage Act, has a long history of eliminating legislation just like it. In 1996, he authored the landmark gay rights ruling in Romer v. Evans, which begat the Court's decision in Lawrence v. Texas (which he also authored), which outlawed anti-gay sodomy laws. So, even though he won't be in Boston on Wednesday, and even though the Supreme Court hasn't yet waded into the same-sex marriage fight, Justice Kennedy is at the heart of both enormous cases. The law itself is on trial these days. And so is the justice.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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