In this Slate article, I argue that the recent success of same-sex marriage at the ballot box might, paradoxically, make it harder for equality advocates to win at the Supreme Court. But I think they should win, anyway.
Over at The New Civil Rights Movement, I’ve got a piece that ‘splains to layfolk what happened at the Supreme Court yesterday, and what I think it might mean.
I know it should be “Socarides and I,” but the post title is catchier. Anyway, I will be on NPR’s Radio Times tomorrow at 10 am. (Here’s the link; you can listen then, or later via podcast. On radio it’s 90.9 WHYY in Philadelphia. I think it’s also on satellite radio but I don’t know the time.) We’re discussing DOMA, Prop 8, Obama and marriage equality, maybe civil unions (I hope).
Richard Socarides, if you don’t know, was a high-level Clinton advisor and is currently a hugely important figure in struggle for LGBT legal equality. What you’re even less likely to know is that his father, Charles Socarides, was an infamous homophobe who for years fought back (unsuccessfully) against the decision by the American Psychiatric Association to delist homosexuality as a mental disorder. I’m guessing there were some interesting dinner conversations….(or maybe not!)
As I wrote in my previous post, the repeal of DADT peels away the mask on a problem just as it solves another: Once gays and lesbians are allowed to serve openly, their relationships snap into view. And then we can see, clearly, the devastating effect of the Defense of Marriage Act (DOMA) on the daily lives of these couples.
A regular reader and friend drew my attention to this story from Reuters. It details the difficulty that a lesbian couple — a couple with a six-year-old child and a baby on the way — faces when both parents are in the military. The odds that they’ll be placed together are much lower since they’re not married. They have to appeal under a hardship rule, and that’s less likely to be successful than a request to remain together submitted by a legally married couple.
In this case, the hardship request was denied. (But the request was made before Luz Bautista, the mom making it, was able to reveal that she was in a relationship.) So Bautista is about to be shipped off Illinois for a three-year posting that could be extended. The couple plan to swap custody every three months or so, which seems the best they can do under the circumstances. This is another stark example of how DOMA undermines the very family values it was supposedly implemented to protect. We should call attention to cases like this at every opportunity, and call upon the oppositionists to explain and justify such a result.
Meanwhile, until DOMA is either repealed (not any time soon) or declared unconstitutional (a better chance), advocacy groups should be holding the Obama Administration’s feet to the fire. We should insist that the hardship rule be interpreted in such a way as to render same-sex couples no less likely to be placed together than their opposite-sex counterparts. A directive so mandating should issue, forthwith. For now, stories like this one reveal the stark inequality of DOMA and draw the date of its demise ever closer.
Bautista: “The emotional toll. You can’t even describe it. It has been tearing us apart for the last couple of months.” Most parents would agree. And there’s no need for this trauma. Fix it, already.
Tomorrow, I’m to be the guest for the first full hour of the Dave Scott Show. It’s available, live at 1 pm EST and via podcast thereafter, at this web address: http://thedavescottshow.wordpress.com/
I’ll be talking about marriage equality, with an emphasis on the recent development in the Defense of Marriage Act cases, and probably lots more of interest to everyone, whether in the LGBT community or not: DADT repeal; the Employment Non-Discrimination Act, state and federal responses to bullying, and who knows what else.
Marriage equality is about to become law in Argentina, a solidly Catholic (70%-90% of the population) country that also has preferences for Catholicism built into national law. Argentina thus becomes the first Latin American country to fully recognize the basic dignity of same-sex couples. Buenos Aires, here I come! (Well, probably not.)
With each nation, state, or city (such as Mexico City) that recognizes full marriage equality, we chip away at the reductive argument that “marriage always means the union of a man and a woman.” And the debates that lead up to such enactments continue to provide reminders that the opponents have no arguments. Consider these statements in opposition to the proposed law:
Cardinal Jorge Mario Bergoglio said “everyone loses” with gay marriage, and “children need to have the right to be raised and educated by a father and a mother.”
Everyone loses? Surely not same-sex couples and their kids. And same-sex couples are already raising and educating children. Marriage rights just provide them with a better environment in which to do so.
“Marriage between a man and a woman has existed for centuries, and is essential for the perpetuation of the species,” insisted Sen. Juan Perez Alsina, who is usually a loyal supporter of the president but gave a passionate speech against gay marriage.
Passionate but misguided. That marriage between a man and a woman is “essential for the perpetuation of the species” is a defensible, though contestable proposition. What’s essential is something called “sex”; perhaps marriage does civilize people and pass something vital along to the next generation, but even to the extent that’s true, none of that is affected by allowing same-sex couples to marry.
With every nation, state, and city that recognizes the basic equality of its citizens by legislating same-sex marriages, bald assertions about what marriage “must” mean becomes harder and harder to speak with a straight(!) face.
Meanwhile, we can’t even get Congress to consider repealing DOMA.
In today’s column over at 365gay.com (not gay on Feb. 29?), I argue that the government needs to appeal the decision by a Massachusetts federal district judge that ruled section 3 of DOMA unconstitutional.
I even think that the case might come out favorably even when it reaches the Supreme Court.
Having read in the NY Times a couple of confident-sounding quotes from Yale law prof Jack Balkin — critical of the two DOMA decisions handed down yesterday, and predicting their certain reversal on appeal — I tracked down his blog post for more detail. Doing so only ripened my sense that his analysis is questionable.
I don’t have much to say about his Tenth Amendment point, except to note that it does seem that there’s something different about passing federal statutes and regulations that distribute benefits and impose obligations based on family structure (some of which do assay a definition of family), on the one hand, and DOMA, which for the first time in U.S. history defines marriage for federal purposes, on the other. See my previous post for an elaboration of the point.
But that’s the least of it. The elusive and shifting limitations on Congressional power imposed by (judicial interpretation of) the Tenth Amendment are one side of the coin; identifying the positive source of the power to legislate is the other. And Balkin breezes past the spending clause question, which is the legislative predicate on which the Obama Administration stood. The problem with that is the Supreme Court’s own holding, in South Dakota v. Dole, that purported exercises of the spending power aren’t valid where they violate other constitutional provisions — and here the exercise of the power does just that, according to Judge Tauro, by running afoul of the equal protection clause (for reasons he spells out in his opinion in the companion Gill case).
And, speaking of equal protection, here’s Balkin’s take on what the court did in Gill:
Moreover, while insisting that marriage is a distinctly state prerogative, Judge Tauro argues that the federal constitution makes it irrational for the federal government to discriminate between same and opposite sex couples. But if so then it follows that it would also be irrational for a stategovernment to discriminate, because the test under the Fifth Amendment equal protection component and the Fourteenth Amendment’s Equal Protection Clause (which applies to the states) is the same. Thus Judge Tauro is saying that marriage is none of the federal government’s business, except, of course, when a federal court thinks otherwise. He is, in essence, laying the groundwork for an equal protection challenge to state marriage laws in virtually every state. This is not a result that is particularly respectful of state prerogatives!
This is clever, but not persuasive. That the tests applied to federal and state laws would be the same doesn’t mean the facts would be. Most of the discussion relating to the federal government’s justification for DOMA wouldn’t apply at all to the states, because it had to do with the “rational basis” for maintaining the opposite-sex marriage status quo; as Tauro pointed out, the “status quo” is for the feds to respect and follow the state definition of marriage. There’s just no analogous issue in state court. (It is true, though, that Judge Tauro also exploded the proffered justifications for DOMA at the time of its enactment; to the extent this exercise is part of the holding (and not just dicta), it would, if followed, constitute an equally powerful argument against similar state justifications for the exclusion of same-sex couples.)
And the final point about respect for state prerogatives also misses something vital. There’s a huge difference between the historical and constitutional facts that limit (maybe!) the federal government’s ability to define marriage, on the one hand, and a constitutional violation of equal protection, on the other.
Indeed, the difference seems to lie at the very heart of federalism.
Update: Andrew Koppelman, in a short, effective post, also took on Balkin with respect to the equal protection argument. Balkin then backed off (some), in a long post that looked at the possible justifications for DOMA’s section 3 – and that only ran aground when he implied that DOMA might not have been enacted because of homophobia but because of politics. In our representative democracy, to the extent that politicians enact their constituents’ homophobic impulses, it shouldn’t matter whether, in their heart of heart (which have yet to be discovered in many of them), they share those beliefs. Who cares? Oh, and by the way, they do share them, or at least did when DOMA was enacted: Read some of the Congressional testimony, for cryin’ out loud.
Big, good, and mostly expected news: Federal district court judge Joseph L. Tauro ruled tonight, in two separate cases (Commonwealth of Massachusetts v. HHS and Gill v. OPM), that section 3 of DOMA is unconstitutional. It’s late, and I’ve just slogged through all 75 pages of the decisions, but there are a couple of things that really jumped out at me.
First, I was reminded that these cases were brilliantly targeted at the weaker part of DOMA. Section 3 reads:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.
In other words, DOMA takes the step — the historically unprecedented step — of creating a federal definition of marriage, which it then superimposes on the states’ own definitions, effectively limiting their legal and social effect. The two cases were brought by (1) the Commonwealth of Massachusetts itself; and (2) several legally married, same-sex couples living in Massachusetts. Their constitutional claims were quite different, but (as I’m about to show), connected in one vital respect.
Let’s start with the couples. Their claim is simple, elegant, and really irrefutable: Granting federal benefits and other rights to some married couples, but not to others, is about as clear and indefensible an exercise in the denial of equal protection as can be imagined. In Massachusetts, both opposite- and same-sex couples can marry, but the straight ones get the goodies and the gay ones don’t.
The judge didn’t find any need to apply any kind of heightened scrutiny to the case, because he found that the law didn’t even have a rational basis. In a case that repeatedly cited Romer v. Evans, the court ran through the purported congressional justifications for DOMA in record time (in part because the Obama defense team had abandoned them): encouraging procreation and child-rearing in the optimal setting, and conserving scarce resources. The other justification, which amounted to little more than “we must avoid the apocalypse” (“traditional notions of morality”) was brushed aside as insufficient to ground legislation, per both Romer and Lawrence v. Texas.
The one new justification that the government raised was protection of the status quo. The court demolished — I mean, demolished — this argument, noting that the “status quo” had been for the feds to recognize states’ definitions of marriage, so that DOMA radically changed that status. And the practice of recognizing, and deferring to, local law on marriage, had been unaltered throughout our history, even in especially contentious cases such as interracial marriage. That practice, in turn, was grounded in the long-standing recognition that marriage and family law is one of the most fundamentally state law issues of all.
In short, the court stated what everyone knows: DOMA was a panicked, hastily crafted law designed to shut down the marriage equality movement before it took hold. Rationality and deference to (what Congress considered) bad state law had no place in the discussion. If equal protection under the law means anything, it’s that laws fencing out classes of people need at least a plausible justification. This provision of DOMA has none.
The equal protection argument used to strike down DOMA in the couples’ case turned out to be pivotal in the Commonwealth’s case, too. This was perhaps the most surprising aspect of the court’s decision.
As to section 3, DOMA doesn’t state a legal basis for Congressional action; so the government had to come up with one. It chose the spending clause, which allows Congress to tax and spend for the the general welfare. (DOMA is (to an extent) about benefits.) The other side of that coin, the court stated, is the Tenth Amendment; it reminds us that Congress only has those powers enumerated in the Constitution. So while respect is due Congressional determinations of their power to legislate, courts get to decide whether an enumerated power can fairly said to have been exercised, or whether the principles of federalism reflected in the Tenth Amendment require striking down the law.
The spending clause discussion turned out to be simple, because the Supreme Court, in a 1987 case, established some clear limitations on Congressional ability to tax and spend. One was fatal here: “the legislation must not be barred by other constitutional provisions.” Since the court had ruled in the couples’ case that DOMA violated the guarantee of equal protection, that limitation was exceeded. (The court also noted that many of the federal laws affecting “spouses” had nothing at all to do with benefits, or spending.)
The court could have stopped there, but didn’t. What followed was a textbook exegesis of “the new federalism” that the Supreme Court has aggressively pursued (almost always by 5-4 majorities) over the past fifteen years. By way of background, the court sailed through the history of marriage regulation, beginning in the pre-Constitutional period. It’s always been a state matter, Judge Tauro noted, so much so that whenever anyone in Congress thought that family law matters might be worth regulating, a constitutional amendment (that would vault over any other constitutional issues) rather than legislation was considered. Until DOMA.
The Supreme Court, too, has assumed that domestic matters were beyond federal power to regulate; in a recent case criticizing an expansive view of the commerce clause, the Court feared that such an approach could lead to federal regulation of “family law and other areas of traditional state regulation.”
The government can defend that it’s not making Massachusetts do anything, and maybe that argument will prevail — the Court consistently distinguishes receipt of benefits (like the Medicaid ones that Massachusetts can’t get for its same-sex spouses as it can for its opposite-sex marrieds) from directly forcing an action. But the federal tentacles reach so pervasively throughout the state’s own administration that the Supremes might find a line from benefits to commandeering has been crossed. Particularly unsympathetic is the federal effort to stop VA-funded cemeteries in the state from burying the spouses of service members next to their deceased partners.
And even if the Supreme Court — where this case is surely headed — thinks it can make the benefits/commandeering distinction as a matter of logic, to allow this level of intrusion into state’s affairs would be hard for this Court to do with a, er, straight face. (That’s not to say it would surprise me, especially from this group of activist, expedient-driven justices.) And it still doesn’t get around the equal protection problem, which seems to me unshakeable.
In today’s 365gay column, I answer a few of the questions that have come in since I started this weekly gig:
- Is DOMA constitutional?
- Should we just ask Justice Kennedy what he thinks about marriage equality?
- How can Obama be so good and so bad on LGBT issues at the same time?