Congress, represented by former solicitor general Paul Clement, has filed two briefs in one of the cases challenging the Defense of Marriage Act in a federal court in New York. One is a memorandum providing legal reasons the court should deny the ACLU’s motion for summary judgment. The second is a memorandum with reasons the court should grant the Bipartisan Legal Advisory Group’s motion to dismiss. Both are excellent, and I particularly appreciate the way the second brief explains the state’s interests related to procreation.
The opposition brief argues that “sexual orientation” is not analogous to race because, among other things, all federal circuit courts have rejected this idea, and gays and lesbians are not politically powerless (especially given that the state of New York and the federal government are supporting the ACLU position in the case). The brief also notes that the federal government has been involved in the definition of marriage in the past. A representative quote: “Plaintiff appears oblivious to the irony of maintaining that homosexuals have limited political power in a case in which her position is supported by both the State of New York and the United States Department of Justice. In light of the latter’s longstanding duty to defend the constitutionality of federal statutes, its decision to decline to defend the constitutionality of DOMA, and instead adopt the very position advocated by Plaintiff, is particularly telling.”
The memo supporting the motion to dismiss makes the foundational argument that DOMA is entirely consistent with constitutional guarantees. It argues that same-sex marriage is not a fundamental right deeply rooted in history and tradition, and that it does not discriminate on the basis of sex or sexual orientation. The brief also explains that Congress is justified by government interests in avoiding creation of “a social understanding that begetting and rearing children is not inextricably bound up with marriage” and in fostering marriages that provide mothers and fathers for children. It argues that any redefinition of marriage should be left to the democratic process. Representative quote: “Indeed, most sexually-active opposite-sex relationships have an inherent ability to produce children whether or not the spouses are seeking to do so at any given time. And the fact that opposite-sex relationships produce unplanned and unintended pregnancies is at the heart of society’s traditional interest in promoting the institution of marriage and providing incentives for these unplanned offspring to be raised in the context of a traditional family unit. Whatever else is true of the procreative potential of same-sex couples, the phenomena of unplanned and unintended pregnancies is limited to opposite-sex couples. Congress rationally could have concluded that a special legal category was necessary to recognize the special concerns that face a couple who must take account of this inherent possibility of their relationship, and to support and incentivize such relationships despite the increased responsibility they place upon the spouses.”
The 14th Amendment clearly establishes a high bar for any form of discrimination in law. In fact, its bar is higher than we have now because it was watered down during FDR's reign. Any reading worthy of the name shows clearly that the state rarely satisfies its requirements in any arena--not in marriage, not in race, not in contracts, not in business licenses, not anywhere.
Reply to this commentLinkReport AbuseIn what way was it watered down?
Reply to this commentLinkReport Abuse"Congress" did not, in fact, weigh in. The House Bipartisan Legal Advisory Group - along party lines with Republicans voting for the choice - hired a firm to represent DOMA. The Senate (which, in case you weren't aware, is part of Congress) was not involved in this decision. Furthermore, the Republican's decision will cost taxpayers hundreds of thousands of dollars to the taxpayers. So much for cutting costs.
Additionally , while Clement asserts the DOJ has a "long standing duty to defend the constitutionality of federal statues", there is ample precedent for the Justice Department’s decision not to defend this statute: Since 1979, both Democratic and Republican Administrations have declined to defend acts of Congress on more than 50 occasions. In fact, it is rare for the House to intervene in defense of statutes that the Justice Department has declined to defend.
Reply to this commentLinkReport AbuseFailure to defend DOMA, should that result in its being affirmed as unconstitutional on appeal, would cost (at least) millions of dollars in added federal benefits to same-sex couples. So much for so much for cutting costs.
Yes, there is precedent for DOJ putting aside its traditional duty to defend federal statutes. The point here is that by declining to do so, the DOJ has demonstrated that individuals seeking to marry others of the same-sex have political clout and are not a discrete and insular minority (Carolene Products FN4).
Reply to this commentLinkReport AbuseThe logical extension of your argument--that the issue is cost to the federal tresury--is that the federal government shouldn't give any benefits based on a state-law recognized "marriage" at all, i.e., that it should accord benefits based on individual status only. Fine by me.
Reply to this commentLinkReport AbuseI wouldn't necessarily have any great objection, either, but eradicating federal benefits is not the logical extension of the argument against benefiting SSM. The federal government has made the rational decision to encourage families in which each child has a committed father and mother.
Reply to this commentLinkReport AbuseTO: Hughman
Of course "Congress" weighed in per the defense of the Defense of Marriage Act (DOMA). There are rules in Congress (yes the combination of both Houses of the USA Congress) by which the laws passed by Congress (as in BOTH houses) are defended. Since the House of Representatives allocates funds, it is therefore the House of Reps. that would have the procedure to defend DOMA, if the Court allows it. Why would the Court allow BLAG (the Bipartisan Legal Advisory Group) to defend DOMA, if it were illegal for the House of Reps., following their rules for emergency situations, to do so? Obviously BLAG got that cleared up in the first step, some months ago.
You cannot assume the "Republicans" are defending DOMA. Read the Motion to Dismiss, in the court case under question. Also, the House of Reps. had to spend on the defense of DOMA, because the Department of Justice defaulted and will save tax money not having to defend DOMA. So, where the extra expenditure? And who are you to question it? DOMA got a break, because it is now defended by top-notch lawyers :)
Reply to this commentLinkReport AbuseFor me, this is one of the two most important issues of the 2012 Presidential campaign and election and is center stage right now. I can think of no better place for our tax dollars to go, especially with Paul Clement at the helm of the defense of the DOMA.
Reply to this commentLinkReport Abuseahh... the great distractor. Our debt reached 100% of GDP today, and we're supposed to worry about where people put their private parts?
Reply to this commentLinkReport AbuseYou are the only one who has said anything about private parts. It is the public institution of marriage that is in question.
Why do you always argue that we have better things to think about when what *you* are thinking about is SSM and how to legalize it? If you would set forth your arguments in favor of SSM honestly, they would be considered.
Reply to this commentLinkReport AbuseWhile this is an important issue for you, for most people it is not. Every day older voters who care about two guys who love each other getting married die and they are not being replaced by younger voters who viscerally oppose it. Focusing on issues like this will just make Obama's reelection easier. Fine by me, but I was under the impression that conservative want to make him a one term president.
Reply to this commentLinkReport AbuseI doubt that you actually have any idea how many people consider SSM an important issue. Moreover, to the extent that people aren't worried about it one way or the other, your argument about Obama loses what little force it might have. But even if SSM proponents are highly motivated, I am not worried that Obama's reelection prospects are appreciably enhanced because many of us intend to protect conjugal marriage.
My main point, however, is that for Right of Center it is indeed an important issue, although he or she pretends that it is not. Seems to be an important issue to you, too. So why not just argue the merits?
Reply to this commentLinkReport AbuseIf SSM is a winning strategy for the Prez, why doesn't he come out and fully support it?
If it's such a winning strategy why has so many states passed laws stating marriage is only between a man and woman?
If it's such a winning strategy why did it take serious Wall St money to get SSM passed in NY?
I'm sure there are many young voters with skulls full of mush and indoctrinated by their college professors who viscerally oppose traditional marriage. But with age comes wisdom, for most. And the wisdom of traditional marriage becomes more apparent to the health of a society.
Reply to this commentLinkReport AbuseI know at least one way the fight for marriage equality is similar to the civil rights movement: just as today we look at government-sponsored racism with puzzlement and shame, so too one day will we look back at state-sponsored homophobia with the same feelings.
Reply to this commentLinkReport AbuseThe day we view the absence of SSM with "puzzlement and shame" will have to await the day we have all rejected both natural law and Scripture. Then there will be an additional wait -- until the time when we no longer have the eyes and brains to discern anatomical differences and to understand how babies are made and families are formed.
No, I'm afraid that even if you manage to impose SSM on a people who reject it, you will have a long, long wait if you expect the public to equate homosexuals with the descendants of slaves, relegated to poverty and rejected as full participants in public life. Such lies can't ultimately prevail, because the truth is what it is.
Reply to this commentLinkReport AbuseWell said, Hardcastle!
Reply to this commentLinkReport Abuseto: RatPack78
Reply to this commentLinkReport AbuseFollowing your line of reasoning, would any group of people claiming special rights really deserve those rights? Just because in the civil rights movement a certain race obtained their rights, does it mean that ANY group that jumps up and down claiming discrimination and telling sob stories should really get the rights they claim? If that were so, then a host of groups could also get the rights they claim: For instance, Republicans could also claim they are discriminated against, and called hateful names. But that doesn't make Republicans get special treatment, like the people of homosexual behavior hope to get for all same-sex partnerships. No, the future is not like you envision it. People will see through the false arguments, and political coercion.
You know, dear Rat Pack, I'm really tired of being labeled homophobic, when all I'm really doing is respectfully disagreeing with you heterophobes.
Reply to this commentLinkReport AbuseNote that opponents of the column and lawsuit did not deal with the main argument presented, the argument about unintended pregnancies; so there's no need to repeat the unchallenged argument at this point. A different possible choice of terminology would have been possible. One could note that there is good discrimination and bad discrimination. (The word has the neutral meaning of intellectual and moral distinctions; the key is not whether an action is discriminating; indeed, almost all law is in some sense discriminating; the question is whether it is justified or not; and the column and lawsuit offer a good basis for discrimination that is unrebutted here. Note that as soon as "private parts" are joined, it is no longer simply private, and never has been. Note that a University of Chicago sex study said that the word "homophobia" is so ambiguous--including the fact that it can be used for both irrational bias and arguably rational moral objection--that the term has no coherent meaning. Note that the opponents of the letter and lawsuit did not deal with the other argument: that homosexuals do not suffer from some special powerless situation.
Reply to this commentLinkReport AbuseExactly. The procreation argument is not as simplistic as the other side says.
Because opposite-sex couples can reproduce, it is enough reason for society to want to encourage them to do so-- whether or not they do. The easiness of having a child for these couples means society must encourage responsibility. No such need exists for opposite-sex couples.
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