When Supreme Court Justice Elena Kagan read aloud from the 1996 Report to Congress that accompanied the passage of the Defense of Marriage Act, there were audible gasps of shock in the courtroom, according to several people who attended oral arguments Wednesday.
"I'm going to quote from the House Report here," Kagan had said "... 'Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality.' Is that what happened in 1996?"
"Does the House Report say that?" replied Paul Clement, the attorney defending DOMA. "Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute."
But, he continued, "This Court, even when it's to find more heightened scrutiny ... it suggests, 'Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We're going to look, and under rational basis, we look: Is there any rational basis.'"
In short, he argued, "The House Report says some things that ... we've never invoked in trying to defend the statute"-- and so the court should focus on these other articulated rationales for preserving the controversial law.
Yet the intent of Congress in passing the law, as laid out in the House Judiciary Committee Report to Congress, is hard to ignore. Noted Kagan: "We have a whole series of cases which suggest the following ... 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."
What was going on, precisely, in 1996? Let's take a look at the section of the report in question, explaining a rationale for DOMA (I've italicized the red flags I see):
H. R. 3396 ADVANCES THE GOVERNMENT'S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITYThat is one heck of a statement of congressional intent -- and one made even more notable by Salon's revelation during the Lewinsky scandal in 1998 that Hyde had, as a married man in the 1960s, had an extramarital affair. That story? "This hypocrite broke up my family," a j'accuse against Hyde by the husband of the woman Hyde had had an affair with, Fred Snodgrass. In the piece, Snodgrass's daughter also relays her mother's opinions, observing of Hyde, "She knows she wasn't his first [mistress] and she wasn't his last."
There are, then, significant practical reasons why government affords preferential status to the institution of heterosexual marriage. These reasons -- procreation and child-rearing -- are in accord with nature and hence have a moral component. But they are not -- or at least are not necessarily -- moral or religious in nature. 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, moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. As Representative Henry Hyde, the Chairman of the Judiciary Committee, stated during the Subcommittee markup of H.R. 3396: ''[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people...feel ought to be illegitimate.... And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval...on a union that many people...think is immoral.''
It is both inevitable and entirely appropriate that the law should reflect such moral judgments. H.R. 3396 serves the government's legitimate interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.
Given Hyde's relaxed relationship to monogamous heterosexual marriage, his role in pushing DOMA, and the fact that his powerful articulation of the underlying rationale for the law was included in the reporting of the bill, it seems clear that one goal of DOMA was to put the force of the state behind moral views precisely like Hyde's -- which were then widely shared by congressional Republicans, as well as some Democrats -- that gay unions are immoral, illegitimate, disreputable, against nature and not worthy of "the stamp of approval" of any U.S. government body.
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