House Republicans defense of DOMA will be rooted in ugly history.

The law, lawyers, and the court.
March 10 2011 2:27 PM

DOMA Laid Bare

House Republicans defense of DOMA will be rooted in their own ugly history.

Gay marriage. Click  image to expand.
Gay marriage

The Republican-dominated House of Representatives Bipartisan House Legal Advisory Group voted along party lines yesterday to lawyer up and protect the Defense of Marriage Act, which withholds federal recognition of legal same-sex marriages and allows states to do the same. The Legal Advisory Group ordered the House's lawyer to intervene or file as a friend of the court, and hire an outside attorney to do the work. The Obama Justice Department recently determined they could not defend a law they deemed unconstitutional; House Republicans will now present the case for DOMA. Wait till they see what they have to argue. What looked like a good idea in the Speakers' conference room is going to look very different in the cold light of the courthouse.

Antigay groups are thrilled to have a chance to offer a full-throated defense of the law. They'd been complaining for months that Justice was throwing the case, because government lawyers either couldn't or wouldn't tell the courts why Congress felt it needed to defend marriage in 1996. As Dahlia Lithwick explained recently, laws—like DOMA—that discriminate among various groups must meet the constitutional requirements of equal protection doctrine. How hard the law's new defenders have to work to justify DOMA depends on how suspicious the discrimination looks. Until now, the government had argued that antigay legislation doesn't impact a particularly vulnerable group, so any rational justification for it would do. But if Holder is right, the government must show a very good reason for singling out a historically disadvantaged group like gays and lesbians. Justice particularly wanted to avoid advancing the reasons Congress had in mind when it first passed the law. But the Republican DOMA defenders are going to have to advance those arguments. They aren't pretty. And they're all spelled out in the contemporaneous legislative history of DOMA.

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Whoever the Republicans hire will start where the Justice Department finished, arguing that there is nothing suspicious about the law. This will be tricky. Heightened scrutiny is required when the target group has experienced a "history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics." And the legislative history conservatives will be unspooling explicitly reveals that Congress intended to disadvantage homosexuals: "Closely related to the interest in promoting traditional marriage is a corresponding interest in promoting heterosexuality," the legislators wrote at the time. "[R]eason suggest[s] that we guard against doing anything which might mislead wavering children into perceiving society as indifferent to the sexual orientation they develop." So the newer, more truthful DOMA defendants will now be in the peculiar position of defending a law quite purposely intended to discriminate against homosexuals on the grounds that homosexuals have not been the victims of purposeful discrimination.

They did say they wanted the courts to hear the whole story.

The preferred source for the legislative history of federal law is the report of the committee that wrote the thing, in this case, the 1996 Judiciary Committee report—"H.R. Rep. 104-664, Defense of Marriage Act." The report explains that Congress was acting because the Hawaii state court was about to permit homosexual couples to "marry." (Each time the Judiciary Committee referred to same-sex unions, it put scare quotes around the word marriage.) Conveniently, the report lists all four reasons for promulgating the DOMA: "defending and nurturing the institution of traditional, heterosexual marriage; defending traditional notions of morality; protecting state sovereignty and democratic self-governance; and preserving scarce government resources."

The last two reasons are filler. Which brings them back to defending heterosexual marriage (and its close relation, advancing heterosexuality) and upholding traditional notions of morality.

Congress must defend heterosexual marriage, the report says, because childbearing is the purpose of marriage and "government has an interest in children." A bunch of academic social science types have now concluded that intact biological families aren't better at childrearing than adoptive or same-sex couples are. It's been years since any expert said anything else. The defendants in the only marriage case to actually proceed to trial, California's Perry v. Schwarzenegger, couldn't even find anyone to put on the stand and say it. As long ago as 1996, Congress failed to unearth any authority for the threat posed by gay marriage to heterosexual marriage either. They resorted to asserting that they didn't want to risk any threat someone might someday identify ("we must be wary of conducting new experiments"). On the danger to marriage, then, defendants must argue therefore that a discriminatory law can rest on Congress' choice of groundless fears over all existing social science.

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