April 25, 2012
By Scottie Thomaston
Gay and Lesbian Advocates and Defenders (GLAD) has written an interesting take down of the arguments BLAG is trying to make in defense of the Defense of Marriage Act in court. GLAD is fighting against DOMA in Gill v OPM, which was recently argued at the First Circuit Court of Appeals, and in Pederson v. OPM. We covered the arguments in Gill extensively here, but you can find a summary at The Huffington Post.
GLAD argues that DOMA is unconstitutional violates the constitutional guarantee of equal protection implicit in the Fifth Amendment. DOMA treats same-sex married couples differently from opposite-sex married couples with no legitimate basis. One of the arguments BLAG has been fond of using in support of DOMA is that the issue shouldn’t be “constitutionalized”, meaning it should remain a legislative issue rather than one the courts should take on. But it is up to the courts to determine when laws comport with the Constitution’s guarantees: “Telling people to go back to the people that discriminated against them rather than to the courts could be the answer to every constitutional violation, but in our system of checks and balances, courts must say when laws are invalid.
DOMA is legally mandated discrimination against gay people and same-sex couples that is causing harm now. In addition to denying federal marital legal protections and obligations to married same-sex couples, DOMA is de jure discrimination that injures all gay and lesbian people by inviting disrespect by states and private parties.”
Arguing that Congress can indeed define its own terms for federal law (and that any suggestion otherwise is a red herring) GLAD says the issue is that courts must ask “what legitimate and independent federal interest is rationally served by denying respect only to marriages of same-sex couples” and “why… sexual orientation [is] relevant to the federal government given that marital benefits and burdens are allocated based on marital status and nothing more” because restrictive definitions that affect equal protection of the laws need good reasons behind them.
Taking on the claim that “for so long” marriage was between a man and a woman, they note that tradition is not a legitimate basis alone for a law. This matches what the Supreme Court said in cases like and Loving v. Virginia. ‘Tradition’ has historically been used to keep marginalized groups from obtaining the rights and protections guaranteed by the constitution. The government needs a legitimate basis for the law aside from tradition and unrelated to animus against the class of people being targeted with the law. GLAD says: “Rational basis review requires that a classification must bear a rational relationship to an independent and legitimate legislative end. The means (the classification) and ends (the goal) must be separate and distinct to ensure classifications are not drawn for the purpose of disadvantaging the group burdened by a law.
Many of the (invented) justifications for DOMA repeat what DOMA does but not a reason for doing it, or doing it only for married gay people. DOMA’s discrimination is re-labeled as uniformity or consistency, for example, or saving money or administrative ease, but only with respect to gay people’s marriages. Take uniformity: treating all gay people uniformly as unmarried doesn’t explain why only married gay people, among all married people, are treated as unmarried. Doing so also creates disuniformity within the class of married persons. Take the public fisc: Congress could save moneydenying the validity of marriages of redheads, too. But rational review requires a principled basis for recognizing the marriages of some but not others. The same analysis holds.
Other justifications (pause while states debate, act cautiously, maintain the status quo) are only a means to an end but not an end in themselves. Sometimes the government can hold back while some other problem is addressed, but more people marrying exercising their right to marry is neither a problem, nor anything new. DOMA is not cautious – it is a complete ban and unlimited in time. And it upended the status quo at the federal level of deferring to state marital status determinations.
Lastly, the family law justifications about “responsible procreation” and “optimal parenting” don’t rationally relate to DOMA at all. DOMA provides nothing to encourage heterosexuals to marry or have children in a marriage. It only harms same-sex couples who are already married and any children they may have.”
And one important thing about DOMA is the fact that the federal government has always recognized state marriage law even when it disagreed. There was no “DOMA” to protect marriage against interracial married couples. And the federal government has recognized marriages between younger people as well. This makes DOMA distinct from immigration law, according to GLAD, because: “Immigration laws, like many other laws, accept the state’s marital status determination, and then apply additional eligibility criteria. If a person is validly married in a state, but cannot also show that the marriage was bona fide (i.e., not entered into for purposes of securing immigration benefits), then the person is denied immigration benefits.”
The federal government and BLAG who is defending the law need a justification that is not animus based, not tied to tradition, is related to the purpose of the law and explains why similarly situated people should be treated differently in this particular instance. But given the four justifications for DOMA in the Congressional Record: “advanc[ing] the government’s interest in defending and nurturing the institution of traditional, heterosexual marriage”, “advanc[ing] the government’s interest in defending traditional notions of morality”, “advances the government’s interest in protecting state sovereignty and democratic self-governance”, and “advances the government’s interest in preserving scarce government resources”, that task seems quite difficult.