The Day After the DOMA Argument at the Supreme Court
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The Day After the DOMA Argument at the Supreme Court

"Times that blind" give way to Enlightenment

April 2013

DOMA is dead, most likely 5-4, though I retain the belief that Chief Justice John Roberts the Chief Justice will join for reasons explained at length elsewhere (see "Prediction: 6-3 DOMA and Prop. 8 Both Fall; Opinion by Chief Justice Roberts").

DOMA constitutes discrimination against a class of citizens. Treating same-sex couples differently for federal law benefits, privileges and responsibilities had no constitutional justification in 1996 when President Clinton signed it into law, and it lacks explanation under even under the lowest standard of review -- rational basis.

Oh, to be sure there was a great deal of legal underbrush which will require hours of study by law students, but the truly remarkable aspect of the case was how the language of understanding and acceptance came to displace the codification of ignorance and fear. While it is tempting to put the word "rank" in front of discrimination in the first sentence of this essay because the tangible harms caused by the federal disqualification from over 1,100 federal laws, and that harm is as real as the deeply felt lie implicit in the child's brave, but mistaken, assessment that only "sticks and stones" can shatter bones and "names will never hurt." The fact is bones heal; but the disparagement of one's sexual identity, like ethnic, religious, or racial epithets live on in our minds as festering moments of hate and belittlement.

No amount of judicial provocation; no number of sophisticated, cleverly worded legal traps could shake Roberta Kaplan, the attorney for Rita Windsor, the survivor of a same-sex relationship that lasted more than 40 years who was subjected to the discriminatory directive of DOMA in an over-assessed estate tax that no heterosexual couple would need to pay. With her strong-minded hand upon the olive branch, Kaplan held forth to every one of us who thought there was need to "defend" our marriages from those of different sexual orientation as if they carried the most deadly plague. Why in the same arc of time when there were vast needs for additional military personnel to fight an unnecessary war in Iraq, when our sons and daughters were kept in stressful, battlefield assignments for extended tours because of those shortages, the nation nevertheless spurned offers of military service by gay and lesbian soldiers unless they promised to live each day denying their very selves. Either "don't ask, don't tell" or "get out." No sign of exclusionary distaste -- neither "No Irish or Catholic need apply" nor "Whites only" -- could have been more cruel than the statement: "we don't want you even to risk your life for us."

Honesty required Justice Elena Kagan to disclose verbatim the formal epithet of the House Report explaining the purpose for DOMA as designed "to reflect and honor our collective moral judgment and to express moral disapproval of homosexuality." What was the source of this collective moral condemnation? Here, there was little said, and it is here where care will be needed in writing the opinion -- because unlike the unsourced House Report that asserted a collective moral disapproval of the status of being homosexual, there are, in fact, few faiths in this nation -- to take religion as our most widespread source of moral instruction -- that condemn the homosexual person. Some faiths, not all, do raise scriptural or doctrinal objection to homosexual practice because that practice is said to contradict the essence of the "sacrament of matrimony." But even among those who freely choose to worship in a church, synagogue, temple or mosque, there is lively debate whether it is not appropriate to see it as possible for all human beings regardless of orientation to observe the tri-covenantal aspect of sacramental or religious marriage. After all, the argument goes, don't all people expect a life partner to fulfill a promise of faithful love toward each other; to be a source of responsible care, citizenship and neighborliness in community, and if a faith is freely chosen to honor what the mind of God as it may be known in a chosen faith. The House Report with its unnuanced claim of "collective" moral authority was not only trampling upon constitutional equality, but by its virtual codification of one religious view, religious freedom.

This solicitude for faith difference was not discussed. That is unfortunate, because most Americans derive their world views from a faith community rather than state and local governments, which got an incessant amount of attention basically over a question that Chief Justice Roberts had an awfully hard time getting a straight answer. The question: does Congress trample the constitutional authority of the states when it defines marriage for federal statutory purposes? The answer is "No." There is nothing wrong with the federal government defining its own terms even on the subject of marriage, which, while traditionally a state matter is not categorically outside the federal legislative power in Article I. Congress passes federal laws, and no federalism claim contradicts. Of course, the relevant question or limitation upon both federal and state authority is the observance of equal protection.

When Congress passed DOMA, it embraced discrimination not equality. Roberta Kaplan did her advocate's duty: she patiently illustrated why DOMA could not be characterized as an attempt to preserve a neutral attitude of uniformity. Those opposing same-sex marriage tried in every conceivable way to ring the familiar bells of favored conservative philosophy: state's rights; respect for democracy, but ultimately, no post hoc fabrication could hide the truth.

DOMA didn't just guard against "judicially active" states; it contradicted any democratic choice in favor of same-sex too, as pointed out by Justice Anthony Kennedy. Neither faux-federalism nor pretended democratic deference could hide that DOMA was not a benign act of neutrality, but a conscious choice to disavow the same-sex marriages allowed by the people as well as those finding protection under the equality and fundamental rights analysis of state courts.

Of course, the people -- whether they work in the oval office, on Capitol Hill, or behind the bench of the high court are under the Constitution as well.

Enter the jurisdictional part of the DOMA argument. Federal law requires a tangible injury in fact that is caused by the party being challenged with the injury capable of redress. Unlike the Prop. 8 case where those charged with enforcing the statute chose not to do so and the lower court erroneously brushed aside county officials who construed their duty as doing so, the President here was more careful. Yes, President Obama concluded DOMA to be unconstitutional, but comity and respect for the finality of the Supreme Court required, he reasoned, that there be continued enforcement of the law until the Court confirms that judgment. The Court tied itself up in knots over this, and Justice Antonin Scalia accurately reflected that an Office of Legal Counsel opinion that both he and I abided by (both of us having been privileged at different times to direct that small, but vital office of objective legal advice) gave the president less discretion. As we saw things in OLC, the president has a duty to "take care" that all laws, even ones he disagrees with, are enforced. Justice Scalia bemoaned that there was a new "regime" at OLC and it was wrong for the President to not enforce more frequently, and he may well be right. Nonetheless, it is important not to exaggerate. We are in big trouble if the president starts a practice of selective law enforcement on a regular basis, but that is not what is happening here where the president was deliberately waiting for the high court to speak and in doing so, he was also finding that his obligation of "taking care" includes the law of the Constitution.

In any event, Ms. Kaplan's client having been taxed in excess of $300,000 more merely because, as she said, her partner's name was Thea, not Theo, had all the concrete injury needed for standing, and so too, arguably, the members of the House whose votes in favor of DOMA put them in a position to enforce when the president raised constitutional objections.

As the arguments were drawing to a close, every effort to rationalize denying federal benefits to a class of married couples was proven to be wanting. The Chief Justice, noting as much, tried one last gambit. "So 84 Senators based their vote on the moral disapproval of gay people?" Ms. Kaplan declined the opportunity to meet denigration with denigration. "No," she said, I think what is true, Mr. Chief Justice, is that times can blind. . . Seeing the Chief Justice to be momentarily startled or taken aback by the decency of that response, Ms. Kaplan elaborated: "You see, sir, back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction." For the most part, the law that so perniciously imposed second-class citizenship upon her client, said Ms. Kaplan, was the product of "an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don't think exists today and [it is in ] that sense [that] "I'm using . . 'Times can blind.'"

Indeed.

Seldom has there been as sublime a witness for the redemption of the human spirit.

Douglas W. Kmiec, former U.S. Ambassador to Malta, is the Caruso Family Chair in Constitutional Law and Human Rights at Pepperdine law school.

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