As he defends the federal gay marriage banSolicitor General Paul Clement wants you to forget everything he said last week about the federal health care law.

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Congress has no constitutional authority to punish people who don't want to have health insurance, Paul Clement argued last week before the United States Supreme Court. This week? The heralded attorney is arguing, to another panel of federal judges, that Congress has plenty of constitutional authority to punish people who don't want to marry someone of the opposite sex. Last week, Clement defended states' rights and labeled as "unprecedented" the federal health care policy. This week, he says that Congress can dictate terms of a federal marriage policy over the objections of states which have legalized same-sex marriage.

Welcome to the forlorn world of the Defense of Marriage Act, the teetering federal law which defines marriage as solely that between a man and a woman and thus deprives same-sex married couples of certain federal rights and privileges. This is the law that President Bill Clinton triangulated onto the books six weeks before the 1996 election. It is the law whose guts were fileted in 2010 by an esteemed federal trial judge. It is the law the Obama Administration last year all but gave up defending. And it may just be the law, with all due respect to Proposition 8, that gets same-sex marriage to the Supreme Court first.

On Wednesday, before the 1st U.S. Circuit Court of Appeals in Boston, it will be left to the House of Representatives to defend the honor of the statute. Led by the indefatigable Clement (watching him these past few weeks is like watching Jerry Lewis in a Jerry Lewis movie), the bipartisan lawmakers' group (spending your tax dollars) seeks to overturn U.S. District Judge Joseph Tauro's 2010 decision striking down a key provision of the statute. If the House loses this appeal, if a federal circuit declares the DOMA unconstitutional, the Supreme Court would be far more likely to intervene. Put that on your potential calendar for next term.


The House of Representatives argues that Judge Tauro, a revered Nixon appointee, son of a beloved state supreme court justice, only pretended to give the Defense of Marriage Act the respect to which a federal statute is typically entitled. Judge Tauro, they wrote, "failed to apply rational basis review properly and either did not consider these [federal] interests or improperly discounted them." Fighting words. So let's first go back briefly to recall what Judge Tauro wrote about the Defense of Marriage Act. Here is the link to his July 8, 2010, ruling. You really should read it.

Section 3 of the Defense of Marriage Act states:

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 wife.

The question in Gill v. Office of Personnel Management is whether same-sex couples, whose marriages are lawful in the states in which they reside, may be precluded by DOMA's Section 3 from participating in programs available to federal employees and their opposite-sex spouses. The lead plaintiff, for example, is Nancy Gill, who works for the United States Post Office and who wants to add her spouse, Marcelle Letourneau, to coverage under the Federal Employees Health Benefits Program. Yet here's how Judge Tauro described the legislative history of the marriage statute:

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 (citations omitted).

For paragraph after paragraph, Judge Tauro ripped apart the official justifications for the statute. For example, he wrote:

Similarly, Congress' asserted interest in defending and nurturing heterosexual marriage is not "grounded in sufficient factual context [for this court] to ascertain some relation" between it and the classification DOMA effects. To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government's denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex. And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure (citations to footnotes omitted).

Then Judge Tauro gave the law's supporters, especially Tenth Amendmentistas, a blunt conservative reminder about the extent to which the Marriage Act intruded (and intrudes even further today) upon traditional state law functions. Here, naturally for a ruling that strikes down part of a federal law, is the essential states' rights argument. The judge wrote:

There can be no dispute that the subject of domestic relations is the exclusive province of the states. And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law. The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states' power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government's argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest.

Remember that when Judge Tauro was writing here about "the government," he meant the Obama Administration. Now, with the Justice Department stepping into a mere "intervenor" role in the case, more forceful arguments on behalf of the law are being made to the federal appeals court. "The government" now is essentially the House, led by Majority Leader John Boehner (R-Ohio), which is why Clement, the future conservative Supreme Court justice, will be on his feet again. His head must be spinning. Legal standards aside, there are many mirror-like arguments here to the ones made over the Affordable Care Act.


It is not the place of the federal judiciary to countermand the will of the majority as expressed in Congressional legislation, Clement and company argue this week. So therefore, Judge Tauro's decision to strike down the federal law "amounts to a conclusion that the 427 members of Congress who voted for DOMA (including then-Senator Joseph Biden), and President Clinton who signed DOMA into law, were not just misguided but were patently irrational. That is not a judgment that can be sustained." In this case, they mean. Clement, of course, is making the exact opposite argument in the Affordable Care Act case. Lawyers!

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.


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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