Congressional Republicans Offer Three Bad Arguments for Upholding the Defense of Marriage Act

Next month, the Supreme Court will hear oral argument in United States v. Windsor. The case presents the question of whether Section 3 of the Defense of Marriage Act (DOMA)—which defines marriage as opposite-sex marriage for purposes of federal law—is constitutionally valid. Although the Court could resolve the Windsor case on narrow grounds, at least some Justices may view it as an opportunity to decide whether the Constitution protects a right of same-sex couples to the same legal recognition for their marriages that opposite-sex couples enjoy.

In this column, I dissect three very weak arguments for upholding DOMA Section 3 that are found in a brief recently filed on behalf of congressional Republicans. The weakness of these arguments should bode well for the cause of legal same-sex marriage.

The Misleadingly Named “Bipartisan Legal Advisory Group”

In 2011, Attorney General Holder concluded on behalf of the Obama Administration that DOMA Section 3 is unconstitutional. However, the President must faithfully execute the laws of the United States.  Is a law that the President believes to be unconstitutional—but that the courts have not yet struck down—among the “laws” that the President must faithfully execute?  Or would executing such a law itself be unconstitutional?

President Obama resolved this dilemma in the same way in which prior Presidents have resolved similar problems. He continued to enforce DOMA Section 3, but instructed the federal Justice Department not to defend it against legal challenges in court.  Continued enforcement was supposed to ensure that same-sex couples disadvantaged by DOMA Section 3 would have standing to challenge it, thus enabling judicial resolution of the question of the law’s validity.

When the Obama Administration decided it could not itself defend DOMA Section 3, substitute counsel was needed to ensure that the best arguments would be presented for each side.  The solution—again following the pattern of similar cases in the past—was the participation of the “Bipartisan Legal Advisory Group of the U.S. House of Representatives” (BLAG) in the court proceedings.

Despite its name, with respect to the Windsor case, the BLAG is not, in fact, bipartisan.  The five-member BLAG’s three Republican members directed the filing of briefs in defense of DOMA Section 3, over the dissenting votes of its two Democratic members. The BLAG hired former Solicitor General Paul Clement to defend DOMA Section 3.

When the Supreme Court agreed to hear the Windsor case, however, it specifically added two threshold jurisdictional questions occasioned by the Administration’s decision not to defend the law, and uncertainty about the legal standing of the BLAG. Those issues could prevent a decision on the merits, but if they do not, then the substantive questions will be vigorously contested, with excellent lawyers on each side.

Yet despite their considerable legal firepower, the BLAG’s brief contains three shockingly unpersuasive arguments, which I consider, here, in turn.

BLAG’s First Bad Argument: Marriage as a Tool to Address Accidental Procreation

Plaintiff Edith Windsor challenged DOMA Section 3 as denying equal protection of the laws to members of same-sex couples whose marriages are recognized under state law, but denied legal effect by federal law. A successful defense of the law would thus require some justification for this difference in treatment.

One proposed justification offered by the BLAG brief goes like this: Heterosexual couples sometimes procreate accidentally; the children born to such couples would benefit from a stable two-parent home; marriage promotes stable two-parent homes; but same-sex couples do not procreate accidentally; and thus, marriage, understood as a government program to address accidental procreation, is useful for opposite-sex couples but not for same-sex couples.

This argument is so riddled with holes that one wonders whether it was included in the BLAG brief as a joke. Here, I shall just mention a few of the worst deficiencies.

To begin, the government legally recognizes marriages of opposite-sex couples regardless of whether they pose any risk of accidental procreation. If the government were really interested in conserving the resources that marriage confers for those persons who may accidentally procreate, it would not give legal recognition to the marriages of post-menopausal women or sterile men.

Furthermore, even for fertile opposite-sex couples, the legal availability of marriage hardly prevents out-of-wedlock accidental procreation. No one is legally required to marry, and of course, opposite-sex couples that do marry, and then accidentally procreate, can then divorce.

The “accidental procreation” defense of DOMA Section 3 thus relies on a long chain of assumptions: First, that denying recognition of same-sex marriages saves the government substantial resources; second, that those resources will then be used to fund a subsidy for all opposite-sex marriages; third, that the resulting subsidy is sufficient to induce substantial numbers of couples who otherwise would not marry to do so; fourth, that some number of those couples will accidentally procreate; fifth, that some substantial fraction of those accidentally procreating couples who would have split up were they not married, will remain together because of the marginal increase in the marriage subsidy available as a result of the savings generated by the government’s failure to recognize same-sex marriage; and sixth, that these accidental parents who stay in unhappy marriages because of that marginal subsidy will provide better homes for their children by staying together unhappily than they would by going their separate ways.

This chain of assumptions is so highly speculative that it cannot possibly be the real basis for the government’s denial of the right of same-sex couples to marry. And, indeed, it is not.  The BLAG brief offers the accidental procreation story as a reason for concluding that Congress had a “rational basis” for enacting DOMA, not as an actually persuasive justification for its doing so.

The rational-basis test is the most forgiving form of constitutional scrutiny that the courts apply. In its traditional formulation, it requires only that some set of facts might exist under which the challenged law could constitute a rational means of pursuing some legitimate end.

The accidental procreation argument may not even satisfy this very forgiving test. But even if it does, that would not be a sufficient reason to uphold DOMA Section 3, given the substantial discrimination that gay and lesbian Americans still face. Thus, the accidental procreation argument only works—if it works at all—if the Court accepts the further claim by the BLAG that courts should apply the most minimal scrutiny possible to laws that discriminate on the basis of sexual orientation.

BLAG’s Second Bad Argument: A Lack of Political Powerlessness

Accordingly, the BLAG brief also argues that discrimination based on sexual orientation should be treated differently, for constitutional purposes, from the sorts of discrimination that the Court has deemed presumptively suspect: race, sex, and national-origin discrimination. The BLAG brief offers various arguments for treating sexual orientation this way. I find none of them persuasive, but I will focus here on one particularly bad such argument.

Prior cases have identified a number of factors for determining whether and when a category of discrimination should be deemed “suspect,” and thus should trigger searching judicial scrutiny. One such factor is a lack of political power on the part of those who are victims of the particular kind of discrimination.

The core idea begins with James Madison’s Federalist No. 10. There, Madison predicted that in a large, heterogeneous country, no single faction would dominate or be dominated because politics will involve shifting alliances of different factions. But what if some group cannot form such alliances because of prejudice? Then members of that group will be unable to adequately protect their interests through political means. Modern case law justifies heightened judicial scrutiny for such groups in part as a corrective to this defect in the political process.

The BLAG brief argues that gay and lesbian Americans are not politically powerless, citing very recent gains in combating discrimination, and claiming that the “political power” of “gays and lesbians . . . has grown exponentially with each election cycle.” The BLAG brief even cites President Obama’s conclusion that DOMA is unconstitutional as evidence that gays and lesbians have sufficient political power that they do not need the Court to invalidate DOMA. Did you follow that? According to the BLAG brief, the President’s conclusion that DOMA is unconstitutional counts as a reason for concluding that DOMA is constitutional.

This head-spinning line of reasoning fundamentally misunderstands how equal-protection adjudication works. Courts typically will reject any claim that some group is being unfairly treated in a period when discrimination against that group is pervasive, because judges share the deepest prejudices of the public at large. An oppressed group must gain some modicum of political power before any part of the legal system will take their claims seriously. But if that political power is then invoked to defeat their claims, there will be no time at which lingering prejudice will be deemed unconstitutional.

Consider a close parallel. In the late Nineteenth Century, the nascent Women’s Movement was politically powerless by any measure. Women did not even have the right to vote, after all. And because the Justices of the Supreme Court shared the prejudices of the wider society, they dismissed equal protection claims made by women.

The Supreme Court did not recognize sex discrimination as a presumptively problematic basis for American laws until the 1970s, a time when women had muchmore political power than they did a century earlier. Yet if the logic of the BLAG brief had been followed with respect to sex, the Court would have and should have ruled against the equal protection claims of women precisely because society was coming to realize that sex discrimination violates principles of equality. Equal protection of the laws, under the reasoning of the BLAG brief, would be reduced to a Catch-22.

BLAG’s Third Bad Argument: Federalism

If the BLAG brief’s argument with respect to political power seems upside-down, so does another claim it makes for sustaining DOMA Section 3. The brief asserts that DOMA serves the interest of permitting “each sovereign in our federal system” to “decide this important issue” of whether to recognize same-sex marriage “for itself.” The BLAG brief thus appears to invoke principles of federalism in support of DOMA.

I say “appears” because the argument is peculiar. Section 2 of DOMA—which is not at issue in the Windsor case—does serve the interests of state sovereignty. It purports to authorize states that do not themselves recognize same-sex marriage to deny recognition to same-sex marriages that have been solemnized in other states. Whether or not Section 2 is constitutional, then, it at least does promote each state’s sovereignty.

But the actual provision at issue in Windsor—DOMA Section 3—has the opposite effect. It says that even though federal law accepts each state’s definition of marriage in nearly every other respect, federal law supplies its own definition of marriage with respect to the question of whether persons of the same sex can marry.

Only upon close inspection of the BLAG brief does it become apparent how Section 3 might be thought to respect state sovereignty: The BLAG brief triumphantly proclaims that DOMA Section 3 does not “override any state’s decision to” recognize same-sex marriage.

But this should count for nothing, because the federal government has no power to set the content of family law for a state in the first place. To characterize DOMA Section 3 as respectful of state sovereignty because it does not displace each state’s internal definition of marriage is a bit like saying that an attacker who punched his victim in the face respected that victim because he did not also kick the victim in the groin.

What Explains the Weakness of the BLAG Brief?

Why would excellent lawyers produce such a faulty brief? The real answer is dishonesty.

DOMA was enacted by a Congress that either shared or was catering to a widespread prejudice against gay and lesbian Americans. The very name of the law—the “Defense” of Marriage Act—betrays that prejudice: Opposite-sex marriage only needs to be defended against same-sex marriage if the latter is somehow a threat to the former, and that can only be true if opposite-sex couples are so fundamentally different from same-sex couples that giving the latter the same rights to marry as the former enjoy somehow taints the whole institution of marriage. Supreme Court precedent quite properly rejects such animus to a class of persons as a basis for defending a law against an equal- protection challenge.

Hence, Mr. Clement was unable to defend DOMA Section 3 by pointing to the real reasons that motivated Congress and President Clinton to enact it. The arguments that Clement has had to concoct in place of the real reasons for the enactment of DOMA Section 3 are so weak because they were made up after the fact. If the Supreme Court reaches the merits, it should see through the façade.

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