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.

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.

Linda Hirshman is the author of the (entirely appropriately named)  Victory: The Triumphant Gay Revolution, coming June 5. www.gayvictorybook.com.

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