DOMA: Defending the Indefensible


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…