Bench Memos


The United States Reply Brief in the California DOMA (Defense of Marriage Act) litigation is a portentous display of sophistry. It is sophistical because it aims to defend the “rationality” of DOMA by first conceding its irrationality. The United States says (in the brief) that “the government does not contend that there are legitimate government interests in ‘creating a legal structure that promotes the raising of children by both their biological parents’ or that the government’s interest in ‘responsible procreation’ justifies Congress’s decision to define marriage as a union between one man and one woman.” In sum (again, according to the brief): “The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing . . .” The United States nonetheless defends the constitutional “rationality” of DOMA by describing it as politically feckless: “Congress could have reasonably concluded that there is a legitimate government interest in maintaining the status quo . . . in the face of serious and fluid policy differences in and among the states.”

But this won’t do. Rationality review in constitutional law has always to do with the “reasonableness” of the norms found in the challenged law. It has nothing to do with the “reasonableness” (or “legitimacy” or understandability) of any group of legislators’ decision to pass any law, especially including unjustly discriminatory ones. There is a plausible political explanation for the enactment of every law, including every law that the Supreme Court has struck down as unconstitutional over the last two-plus centuries. Laws are not delivered by the stork, nor are they conjured up (in engrossed form) by alchemists. They are all passed by political pros for purposes satisfactory to them. The point of rationality review is not to recognize, much less to endorse, the results of this political activity. It is to make sure that the political products we call “law” conform to a minimal standard of reasonableness. The brief contends that DOMA is unreasonable in this sense, the only sense that matters in court.

The United States Reply Brief is thus portentous for obvious reasons. As Ed Whelan suggested earlier today (by reference to Dale Carpenter’s blog over at the Volokh Conspiracy), it is a “gift” to the same-sex marriage movement because it “help[s] knock out a leg from under the opposition to gay marriage.” Well, except that the brief is more like a double kneecapping. Or a drive-by homicide.

But wait! There is good news! The president of the same United States that has thrown DOMA under a bus opposes same-sex marriage! At least he says he does. Thank heavens that President Obama appointed the solicitor general, who (as Ed further suggests) bears ultimate responsibility for the Reply Brief. Presumably we can now look forward to Obama’s public repudiation of the Justice Department’s bad day’s work.

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