In addition to their hypothetical argument, the Congress also made an ontological argument. Same-sex "marriage" cannot be marriage, they reported, because, according to conservative pundit William Bennett, "marriage is [emphasis added] a socially functional coordination of [male and female] … different characters, abilities, inclinations." This is a dangerous argument, because it embodies sex-role stereotyping, forbidden by the Supreme Court in a long line of sex discrimination cases. In one of the earliest of these cases, Frontiero v. Richardson, the Supreme Court singled out for special disdain its own Bennett-like pronouncement in Bradwell v. Illinois (1873):
The constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.
In adopting Bennett's sexual dichotomy, Republican defendants may well have sailed past sexual orientation discrimination straight into the arms of pure sex discrimination.
But defendants' biggest problem in relying on the legislative history is Congress' commitment to "DEFENDING TRADITIONAL NOTIONS OF MORALITY (sic)." The report quotes Committee Chairman Henry Hyde saying " [S]ame-sex marriage … trivializes the legitimate status of marriage and demeans it by putting a stamp of approval … on a union that many people … think is immoral." During the hearings, Rep. Robert Inglis expanded on this point:
one of the strengths of this nation—is the ability to distinguish between right and wrong and that's what it's about here. One of the reasons the Republic has survived so well is that for a long time in this country there was a generally accepted view of what is right and wrong. And folks that you [Rep. Pat Schroeder, who opposed the DOMA] associated with for a long time have attempted to now undo that sort of understanding, and that's part of what's happening here.
Right after Reps. Hyde and Inglis unburdened themselves of their moral horror at Rep. Schroeder's associates, the Supreme Court struck down an antigay provision of the Colorado constitution, because it sniffed out exactly the discriminatory motivations they espoused. Romer v. Evans, the first case to protect gays and lesbians as a matter of equal protection, invalidated a provision forbidding the passage of any civil rights laws protecting gays and lesbians in Colorado. The court concluded that there was no possible reason for Colorado to do so other than from pure dislike, or, as the legislative history reflects in the DOMA case, the inchoate fears of a group so immoral it threatens the survival of the Republic and the well-being of children. Whatever the level of scrutiny, the Romer Court ruled, laws would not pass if "the disadvantage imposed is born of animosity toward the class of persons affected. The desire to harm a politically unpopular group can never be a legitimate government interest."
No wonder the Justice Department didn't want to go legislative history diving. The congressional record of the DOMA resembles nothing so much as a mashup of the 1873 Bradwell decision and a National Organization for Marriage rally. In making these discredited arguments openly, Republican defendants are taking a big risk. And if the Supreme Court ultimately accepts the DOMA as a constitutional exercise in Congress' lawmaking powers, after it sees what Congress first had in mind, it will set a new low for how far a majority can go in imposing indefensible concepts of morality on a despised and marginalized minority.
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