Fifty years from now, when same-sex marriage is recognized in every American jurisdiction, our relatively enlightened descendants will cull through the transcripts and audio feeds of this week's oral arguments at the United States Supreme Court in Perry and Windsor and shake their heads in wonder and dismay. Look at how little time the learned justices spent exploring the intent and effect of the discriminatory laws, our grandchildren will say, and look at how much time they spent instead searching among the weeds for ways to avoid a definitive ruling about the constitutional rights of millions of people.
Tuesday's argument in the Proposition 8 case out of California was void of any reference to, let alone meaningful discussion of, the virulently anti-gay sentiment that helped ensure passage of the 2008 ballot measure banning same-sex marriages in the state -- both marriages already in place and marriages to come. And Wednesday's argument over the federal Defense of Marriage Act only touched on this discrimination in passing, as if the justices were concerned that America would somehow be offended it it were reminded of the bigotry and prejudice that accompanied passage of the measure in 1996.
The rulings in these two big civil rights cases won't be announced until late June -- and both cases could go either way -- but I think history will judge the Supreme Court, and by extension the rest of us, by what was not argued this week. The Court did not confront and condemn the discrimination at the core of these laws. It did not signal a willingness by the judiciary to stand up to the tyranny of the majority. And it did not even minimally force the laws' defenders to justify with facts their disparate treatment of same-sex couples. It was instead a court openly looking for a way out, which, in the end, makes you wonder what kind of court it is at all.
The Defense of Marriage Act
For the sake of our grandchildren, if not for ourselves, let us briefly remind each other of the truth of the matter here -- and let us do so courtesy of U.S. District Judge Joseph L. Tauro, the venerated Nixon appointee who first struck down Section 3 of DOMA back in 2010. Judge Tauro wasn't afraid of offending anyone, or of pretending that this federal law was the result of anything less than unrestrained fear and paranoia about gay marriage. In his opinion, which was largely upheld by the 1st U.S. Circuit Court of Appeals, but which was not accepted for review by the Supreme Court, Judge Tauro wrote:
The House Report acknowledged that federalism constrained Congress' power, and that "[t]he determination of who may marry in the United States is uniquely a function of state law." Nonetheless, it asserted that Congress was not "supportive of (or even indifferent to) the notion of same-sex 'marriage,'" and, therefore, embraced DOMA as a step toward furthering Congress's interests in "defend[ing] the institution of traditional heterosexual marriage."
The House Report further justified the enactment of DOMA as a means to "encourag[e] responsible procreation and child-rearing," conserve scarce resources, and reflect Congress "moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality." In one unambiguous expression of these objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated that "[m]ost people do not approve of homosexual conduct ... and they express their disapprobation through the law."
In the floor debate, members of Congress repeatedly voiced their disapproval of homosexuality, calling it "immoral," "depraved," "unnatural," "based on perversion" and "an attack upon God's principles." They argued that marriage by gays and lesbians would "demean" and "trivialize" heterosexual marriage and might indeed be "the final blow to the American family."
Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs.
Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms "marriage" and "spouse" appeared hundreds of times in various federal laws and regulations, and that those terms were defined, prior to DOMA, only by reference to each state's marital status determinations. (citations omitted by me).
On Wednesday, Justice Elena Kagan was the first to mention this grim history. Paul Clement, the conservative lawyer arguing to save the federal law on behalf of House Republicans, was pretending aloud that Congress had noble goals in 1996 when it passed DOMA. He told the Court:
When you look at Congress doing something that is unusual, that deviates from the way they-- they have proceeded in the past, you have to ask, Well, was there a good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the states and its historic practice of preferring uniformity.
At which point Justice Kagan had heard enough. "Well," she interjected, "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?" To which Clement replied:
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. But that has never been your approach. ... This Court, even when it's to find more heightened scrutiny, the O'Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have improper motive. [emphasis added by me]
Leaving aside the dubious propriety of a constitutional standard that ignores or downplays the motives of lawmakers in enacting laws, Clement's stated position -- that only "a couple of legislators" in Congress expressed prejudice in enacting DOMA -- is contrary to the record of the case. Diminishing the scope of discriminatory intent of the law is also a direct insult to the millions of people discriminated against by it. But Justice Kagan let the matter rest. The argument moved on.
Minutes later, however, it was Solicitor General Donald Verrilli who raised the issue again. To the justices, he said:
It was enacted to exclude same-sex married, lawfully-married couples from Federal benefit regimes based on a conclusion that was driven by moral disapproval. It is quite clear in black and white in the pages of the House report which we cite on page 38 of our brief.
At which point, it was Chief Justice John Roberts' turn to cut in. He said: "So that was the view of the 84 senators who voted in favor of it and the president who signed it? They were motivated by animus?"
Whereas Clement sought to diminish the scope of DOMA's discriminatory intent by making light of it, the Chief Justice sought to diminish it by exaggerating its impact. Of course all 84 senators who voted for DOMA didn't do so because they were bigots. But how many votes from anti-gay bigots would it take for the Court to strike down a law? 10? 30? 50?