Wednesday, March 27, 2013

Don't be fooled by the kinder, softer defense of DOMA

My post on Hollingsworth v Perry yesterday focused largely on the arguments about the wellbeing of children that surfaced on all sides.  If that were my focus of this post, on today's United States v. Windsor, well, there wouldn't be a post.  Paul Clement, representing BLAG (actually the Republican House members committed to defending the indefensible Defense of Marriage Act), did not utter a word against gay and lesbian parents, or even against all the allegedly irresponsible procreation heterosexuals do (and will do more of if same-sex couples can marry, if you believe Charles Cooper's argument yesterday).

No.  Clement defended DOMA as a reasonable effort by Congress to achieve uniformity in the treatment of same-sex couples.  Whether you're in New York or Oklahoma, same-sex couples cannot get the federal consequences of marriage.  That's Clement's idea of uniformity.  It matters not that New York recognizes same-sex marriage and Oklahoma does not.  Those couples should be treated alike.  Clement stressed this, and nothing else, as the purpose of DOMA.  Kagan and Ginsburg, at least, were having nothing of it.  Kagan read from the House Report on DOMA, which stated directly that the law expressed Congress's moral disapproval of homosexuality.  Ginsburg made another reference to the history of sex discrimination (to add to her comments on that basis yesterday) and how long it took the Supreme Court to figure out that the constitution forbids it.  I have no doubt she is going to write an opinion containing impassioned support for lesbian and gay equality, and she is going to write it in this case because she may not have another chance.  I am guessing she will retire while Obama is in office, and she won't have another chance if she doesn't do it now.  I predict Kagan will join her.

What I can't predict is whether she will write a majority opinion, a plurality, a concurrence, or a partial dissent.  There remains a chance that the Court will decide that it can't hear this case -- that BLAG is not a proper party and the government can't appeal a case it won just to get a definitive ruling from the Supreme Court.  But the smart money says they will get to the merits, and if they do, I'm confident five members of the court will find a way to tank DOMA.

The key has always been Kennedy, and he took an odd tack today.  He challenged Clement on whether Congress had the power to define marriages.  This is a federalism challenge, a claim that marriage is for the states and so Congress overstepped its authority.  But that is a huge reach that really seems implausible.  Congress can't say who can marry whom, but it can define who gets benefits or responsibilities under federal law.  Social security, taxes, federal employee benefits -- of course Congress can say who is in and who is out of those.  What Congress can't do is violate the equal protection clause when it says who is in and who is out.  I think it is a strong argument to say that the states define who is married and the federal government has always tracked that; therefore, if Congress is deviating from that historical practice there is probably a bad motive that calls into question the validity of the classification under the equal protection clause.  But that's different from saying Congress doesn't have the power to say who pays what estate tax (the issue facing Edie Windsor).

So why did Kennedy come back to that point several times?  I wonder if Perry spooked him.  He is not ready to tell Alabama it has to let same-sex couples marry.  The DOMA cases don't raise that question, but Kennedy must be realizing how hard it will be to identify a standard of review for equal protection purposes that does not lead down the path to same-sex marriage throughout the country.  Maybe he sees federalism as the way out of that, although truthfully I have a hard time imagining he will relinquish the eloquence of Lawrence for a highly technical opinion on federalism grounds.  But yesterday he spoke of concern for the children of same-sex couples.  Today his only mention of children was again in the federalism context -- that matters involving children are customarily matters for the states.

Going back to Clement's argument, I actually take a bit of comfort in the fact that with the press and public watching (even if the cameras don't roll (as they should!) in the Supreme Court), he was unwilling to say what all the briefs supporting DOMA say:  that the rational basis for the law is an alleged dispute about the impact of same-sex marriage on both the children of same-sex couples and the institution of marriage for heterosexuals.  If that's an argument some who oppose gay rights are unwilling to say out loud, we are winning the culture war.  Nonetheless, the argument is in the briefs and the Justices can certainly rule on that basis.  Roberts, Scalia, and Alito all expressed the anticipated hostility to the arguments of the government and Windsor. (Some people thought Roberts might vote our way.  If I remembered all the bets I made against that in the last couple of weeks I'd be sitting pretty right now.  I never imagined him on our side, and he was pretty vicious.)

If we get to the last couple of days of the term at the end of June, and the opinions in these case have not yet been issued, I'll be going to the Court to be there when they are read.  These are historic moments.

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