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DOMA: Defending the Indefensible

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Boehner Of course, DOMA is not "indefensible" per se.

It is a legitimate -- though ultimately a failing -- argument that the Defense of Marriage Act (DOMA) preserves the status quo at the federal level while the States work out their definitions of marriage. It is a legitimate argument because the government has an administrative interest in avoiding hodge-podge laws. Ironically, there is even a legitimate fairness argument -- DOMA forces the federal government to treat all gay couples the same, no matter where they are from. However, neither of those arguments pass the laugh test: First, rather than preserving the status quo, which was federal recognition of marriage however defined by the various states, DOMA created radically new federal marriage law; second, inequality between straight and gay couples -- not equality among gay couples -- is DOMA's intent and effect, and no one can suggest otherwise.

Into this abyss jumps the Republican-controlled House of Representatives. Speaker John Boehner has been talking about his Chamber's impending DOMA defense for some time, but he took a significant step by convening a House committee to decide what to do. The process is simple: Speaker Boehner's committee has a 3-2 Republican majority and after the committee "studies the issue," it will vote on whether to instruct the nonpartisan House counsel's office to mount a defense. (If the Senate were considering defending DOMA, the process is slightly more cumbersome, as Senate rules require the consent of a supermajority of the chairpersons of the Senate's standing committees. But, since pro-equality forces control the Senate, there will be no Senate intervention to defend the statute.)

Spending millions of dollars defending DOMA shows the House Republicans' hypocrisy about cost-cutting. They have justified cutting Planned Parenthood funding in the name of controlling our exploding deficit and debt, never mind the litany of health services Planned Parenthood provides to poor women and never mind the fact that the organization provides abortion counseling and services to women in need. In fact, the Republicans' $60 Billion budget cuts are all about tearing down liberal programs -- there are no cuts to Defense, but complete defunding of PBS and the National Endowment for the Arts.

So, if the hypocrisy is so striking and the arguments for DOMA so flimsy, why is it a good thing for gay rights that House Republicans mount a vigorous defense of DOMA?

Continued, AFTER THE JUMP...

DOMA needs a defense for the same reason the Yankees need the Red Sox, or Duke needs UNC, or Itchy needs Scratchy. Good needs evil, right needs wrong. That may sound too lyrical to be true, but it is true in court. We want two sides arguing their points of law and fact to a judge or jury, and we want the courts' ultimate decisions to be based on a weighing of all the arguments offered. Such a decision would be beyond reproach and immune to charges of legal error.

While it is true that the neither the House nor Senate must intervene to defend DOMA and while it is true that when a circuit court of appeals or the Supreme Court hears a DOMA case, those courts would likely invite outside parties to file amicus briefs (friend of the court briefs) to take up the defense of the statute, I would rather pro-DOMA conservatives have their say from the beginning, through the official mouthpiece of the House and its legal office, and in a position to mount a proper defense to an indefensible law.

This has various advantages. As a matter of public opinion, it allows pro-equality forces to highlight the irrationality of the Republicans' DOMA defense -- as we saw when ProtectMarriage dot com mounted a terrible defense of Prop 8 in Perry v. Schwarzenegger -- and to expose some of the Republicans' budget-busting rhetoric for the pretext that it is. As a legal matter, it ensures that every judge, at every stage of the DOMA cases, has two parties making the best arguments they can, objecting forcefully, engaging in motion practice and offering evidence. A DOMA defense makes a final decision declaring DOMA unconstitutional more satisfying and immune from the allegation that a lower court had insufficient evidence before it when making its decision.

Let the House defend DOMA. In fact, they should hire the best lawyers. Bring it...

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Comments

  1. Thanks again, Mr Waldman, for breaking down these sometimes complex legal issues into terms and scenarios that the average person can understand. Even though I follow these stories and keep up with what is going on, sometimes it is difficult to understand the technicalities of an issue and to get a feel for what it means in practical application. These well written, rational articles really help me get further educated on the topics, so thanks and keep up the good work. It is much appreciated.

    Posted by: Chadd | Mar 9, 2011 12:24:49 PM


  2. Ari, thanks for giving us an idea of the legal perspective of this fight.

    Posted by: bgk | Mar 9, 2011 12:42:33 PM


  3. They will probably get standing in the appeals court, though that is dicey as they weren't party to the original case and most judges would argue on procedural grounds that they therefore lack the expertise to mount an appeal. However, given that Congress pays the bills, they will probably get in.

    Posted by: anon | Mar 9, 2011 1:14:55 PM


  4. Legally, we all know DOMA and related laws will be inevitably struck down- in style, with a penis-shaped mahogany gavel, I hope.

    However, it seems like Boner and his subjects will never budge because of (a) religious views and (b) "real American" values; that is, he came from nowhere and if his values got him this far, then he Must Be Doing Something Right.

    I'm beginning to think that much of this has less to do with sanctity of marriage (durrrrr!) and more about their simple-minded machisimo - the ability to show that they can do what they want because they're Real Men. Seriously, straight men simply don't care or think about marriage, especially when it comes to OTHER people, which makes this all the more infuriating. They're like faux-masculine high school bullies who harass others since their own lives aren't fulfilling enough.

    Posted by: Drew | Mar 9, 2011 1:32:57 PM


  5. David Dreier and Aaron Schock should be put in charge of developing the arguments for constitutionality. And the rational basis is?

    Posted by: Mike | Mar 9, 2011 1:46:59 PM


  6. I wouldn't analyze Boehner's motivations too deeply, because I suspect Boehner and his ilk don't really care much about gay rights one way or the other. Sure, the Maggie Gallaghers of the world do, but the politicians? Not so much.

    When attitudes change to the point where Boehner risks not getting reelected because of his anti-gay stance, he'll switch in a heartbeat. What's amazing is that time is coming much sooner than Boehner realizes and even if he were to flip-flop right this moment, his anti-gay position on this issue would still cause some problems in a presidential race say eight or so years down the line.

    The Republicans are extremely short-sighted on this issue. Opinion is rapidly changing and the younger generations will not forget their role in bigotry. If the Republicans want to be viable even eight years from now, they need to change immediately. Doubt they will though. Going for the short-term pander is easier than looking out for the long-term.

    Posted by: Idiots | Mar 9, 2011 1:51:22 PM


  7. Very interesting point, Ari. Keep the columns coming.

    Posted by: Bradley Matthews | Mar 9, 2011 3:45:27 PM


  8. Once again, this hack writer is WRONG.

    We actually don't "need" a few rich probably white well-paid lawyers "defending" us or arguing that we should be given equal rights. We should be doing it ourselves. This is the Democratic Party's strategy: demobilize queers, get them back in the closet and out of sight, take their money and votes. They need us queers to stay out of the way. Why? Because if we are able to win something WITHOUT the Democraps, we might learn that we don't need them AT ALL and that the Democraps are actually OBSTACLES to equality and liberation. With the revolutions in Eygpt and in Tunisia and the protests in Wisconsin, that's a lesson they can't afford for us to learn.

    Supreme guardians of the status quo

    Elizabeth Schulte looks at the myth of the "impartial" Supreme Court--and why the court has most often acted to preserve the status quo rather than defend justice and liberation.

    April 29, 2010

    WHEN JUSTICE John Paul Stevens made his announcement in April that he was stepping down from the Supreme Court this summer, a familiar debate began all over again among the media commentators.

    Would Barack Obama--the first Democrat with the opportunity to make Supreme Court appointments in over a decade--shift the court in favor of a more liberal agenda, especially with several important decisions, including possibly his new health care law, seemingly headed for the court?

    The opportunity to fill an empty Supreme Court seat--it's one of the top reasons many progressive-minded people believe they need a Democrat in the White House. This last election, it was a pretty convincing argument, considering what the last Republican administration did with the Supreme Court, adding conservative neanderthals Samuel Alito and John Roberts (as chief justice).

    But as the debate over the Supreme Court appointment begins, the contradictions inherent in the court itself become exposed for everyone to see.

    The court is supposed to be impartial, made up of unbiased men (and a couple women) who--appointed for life--stand above politics and make decisions based on the "rule of law." So when an appointment is on the horizon, the accusations fly fast and furious. Will the new justice be a "judicial activist" or a "strict constructionist"?

    Even to the naked eye, it's obvious that the justices do have their own set of opinions and politics. Alito, for instance, doesn't hide the fact that he'd like to see Roe v. Wade overturned, or that he was a member of a fanatically anti-affirmative action (and anti-coeducational) group called "Concerned Alumni of Princeton."

    Yet the Supreme Court is still considered "above politics." How exactly?

    - - - - - - - - - - - - - - - -

    COMMENTING ON his upcoming choice to replace Stevens, Obama simply said, that the nominee "will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

    That, however, would be a tall order. Because despite the fact that individual justices have their own individual ideas about how to rule, they all share an understanding of the role they play in the U.S. political system, and that takes precedence over all else.

    That role: Preserving the status quo.

    So no matter how the justices' individual political leanings are characterized, the Supreme Court as an institution exists to protect the interests of those in power in society.

    When corporate interests are at stake, the court almost always comes to the rescue of business interests. This couldn't have been more obvious in February, when the court voted 5-4 to overturn laws that would restrict businesses's ability to contribute to candidates and political parties.

    On the other hand, the interests of workers and the poor usually take a backseat. In 2002, when Hoffman Plastic Compounds refused to give back pay to an undocumented worker after he was illegally fired for union organizing activities, the court sided with the company in denying him what he was owed. In the twisted logic of the law, the worker was denied his right to earn a livelihood, first, because he tried to organize a union, and second, because he was considered "illegal" in the eyes of the highest court in the land.

    The early 20th century Socialist Party leader Eugene V. Debs served a six-month sentence for his part in the great Pullman railway strike of 1894. When he got out of jail, he asked:

    And how does it happen and why does it happen that corporations are never restrained? Are they absolutely law-abiding? Are they always right? Do they never transgress the law or is it because the federal judges are their creatures?

    If all the common people united and asked for the appointment of a federal judge, their voice would not be heeded any more than if it were the chirp of a cricket. Money talks. Yes, money talks.

    And I have no hesitancy in declaring that money has even invaded--or the influence, that power conferred by money, has invaded--the Supreme Court and left that august tribunal reeking with more stench than Coleridge discovered in Cologne, and left all the people wondering how it was ever to be deodorized.

    There is something wrong in this country; the judicial nets are so adjusted as to catch the minnows and let the whales slip through, and the federal judge is as far removed from the common people as if he inhabited another planet.

    When corporate interests are served by war, the Supreme Court backs that up as well.

    During the First World War, when laws were passed criminalizing criticism of the war, the court gave its resounding approval. Even liberal justices Oliver Wendell Holmes and Louis Brandeis joined in the unanimous decision to uphold the imprisonment of dissenters.

    The Supreme Court demonstrated that it is one thing to have the right to free speech, but a completely different thing to actually use it. And so rather than upholding this supposedly inalienable right, the court explained why it could be barred. Thus, when Debs used his right to free speech to oppose the war in a public oration in 1918, the court unanimously upheld the verdict against him, sending him to federal prison.

    Debs knew what the verdict would be beforehand. This is what he said about the judicial system during that famous antiwar speech in Canton, Ohio:

    Who appoints our federal judges? The people? In all the history of the country, the working class have never named a federal judge.

    There are 121 of these judges, and every solitary one holds his position, his tenure, through the influence and power of corporate capital. The corporations and trusts dictate their appointment. And when they go to the bench, they go, not to serve, the people, but to serve the interests that place them and keep them where they are.

    Why, the other day, by a vote of five to four...they declared the child labor law unconstitutional...by a majority of one, the Supreme Court, a body of corporation lawyers, with just one exception, wiped that law from the statute books, and this in our so-called democracy, so that we may continue to grind the flesh and blood and bones of puny little children into profits for the Junkers of Wall Street. And this in a country that boasts of fighting to make the world safe for democracy!

    - - - - - - - - - - - - - - - -

    DESPITE THE fact that the purpose of the court is to be a barrier against challenges to the status quo, sometimes the justices can't help but be influenced by the world around them. So when people in society at large have mobilized to wage a challenge to injustice, the court can be pressured to respond.

    When African American students sat in at lunch counters in the segregated South and when thousands more took up the fight for civil rights, it had an impact on public opinion at large--and on the Supreme Court.

    The antiwar, Black Power, women's and gay movements of the 1970s had an impact on the way society at large began to view the ideas of liberation and justice--and this had an impact on the Supreme Court's decisions, too, as the justices ruled in favor of legal abortion and suspending the death penalty.

    It's definitely the case that we can't rely on a Supreme Court justice to do the right and just thing--any more than you can rely on a member of Congress or the president or a corporate board. So we have to follow the same recipe we use when we deal with any of these esteemed bodies.

    1. Organize ourselves. 2. Protest to apply the pressure needed to win our demands. 3. Repeat, until we win.

    More than that, the protest actions we organize have the potential to make an impact not just on the justices on high, but on the world we live in--a world that is rarely touched by the high and mighty justices of the Supreme Court.

    The grand ideals of freedom and democracy that the Supreme Court is supposed to uphold are a universe away when a cop is racially profiling a driver, or when an employer is firing a worker, or when the president is ordering troops to occupy another country.

    For a class on "Law and Justice in America" in the 1970s, radical historian and activist Howard Zinn sent his Boston University students into the neighborhoods to investigate and compare "the realities of justice against the word of law."

    In an article for the Civil Liberties Review, Zinn reported on what they found:

    Our actual freedom is determined not by the Constitution or the Court, but by the power the policeman has over us on the street or that of the local judge behind him; by the authority of our employers; by the power of teachers, principals, university presidents and boards of trustees if we are students...by the welfare bureaucracy if we are poor; by prison guard if we are in jail; by landlords if we are tenants...

    Over the last four years, my students, checking formal constitutional rights against the realities of everyday life in the Boston area, found these formal rights meaningless.

    When we protest and defy unjust laws--like those that criminalize undocumented immigrants or bar LGBT people from having the rights of married people--we have the power to push these laws back and defeat them. And we have the power to defeat the unjust and discriminatory ideas behind these laws.

    As Zinn concluded, "Lacking traditional forms of power and wealth, we can only create a force out of what we have: our assembled selves, our ability to withhold our labor, to withdraw our compliance, to take hold cooperatively of the resources at hand."

    Posted by: The Spirit of Harry Hay | Mar 9, 2011 4:13:12 PM


  9. Trust no hack writers who declare that YOUR liberation depends on some rich people in Washington DC.

    Posted by: The Spirit of Harry Hay | Mar 9, 2011 4:13:52 PM


  10. Just remember: the Hate Crimes Law sat around gathering dust for more than a decade... until a quarter of a million queers and their allies marched on Washington. Then they suddenly found the votes to pass it. Kissing the asses of gay bashers has NEVER stopped gay bashing.

    Posted by: The Spirit of Harry Hay | Mar 9, 2011 4:16:17 PM


  11. Wait, did you just say you're a Yankees fan?

    ;-) Great article.

    Posted by: Derek McIver | Mar 10, 2011 1:31:29 AM


  12. It's time America.
    Onward to full marriage equality rights now.

    Cheers, Joe Mustich,
    CT Justice of the Peace, USA.

    Marriage in the US is firstly a civil and contractual matter. Period.

    Posted by: Joseph A. Mustich, JP | Mar 10, 2011 8:01:39 AM


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