Legislators File Brief in DOMA Case

A group of 212 members of Congress have submitted an historical brief in United States v Windsor, the case challenging the Defense of Marriage Act. Many of those legislators voted for DOMA in 1996, but now they are acknowledging that the law is unconstitutional. The brief says, among other things:

“The goal of maximizing the financial well-being and independence of widows is not furthered by depriving Edie Windsor and others like her of the estate-tax exemption that other married Americans receive. The policy of encouraging employers to provide family health benefits is not served either by denying to employers the tax deduction for providing those benefits to married gay and lesbian couples or by refusing to cover spouses of gay and lesbian federal employees. Our national security is undermined by denying spousal benefits to gay and lesbian servicemembers, especially during periods of armed conflict. Our veterans are dishonored when we deny them the right to have their spouses buried alongside them in our national cemeteries.”

This is the major problem at the heart of DOMA. The arguments in favor of that act, the rationale for adopting it, is not at all furthered by the act itself. It simply is not reasonable or coherent to claim that the government’s interest in encouraging stable families is furthered by denying the rights and protections that they claim furthers that goal to gay couples. That’s why I think it is unconstitutional even if the court applies only the rational basis test, because there simply is no rational basis for the law.

This is a remarkable shift in opinion in Congress, which flows naturally from the shift in public opinion on this question. In 1996, DOMA passed 342-67 in the House and 85-14 in the Senate. It’s so remarkable that it should now be clear that if the Democrats had control of the House, DOMA would almost certainly be repealed and it wouldn’t be necessary to have the courts overturn it. You can read the full brief here.

18 comments on this post.
  1. Ulysses:

    DOMA was set up to specifically discriminate against a minority.

  2. drr1:

    I’m glad to see this brief, but it does cause me a bit of concern on the standing issue.

    The Bipartisan Legal Advisory Group (which isn’t really bipartisan in this case) has taken up the defense of DOMA, but hundreds of members of Congress have taken a position contrary to that of BLAG. The amicus brief recognizes – but doesn’t make any real effort to resolve – this issue. To make a long story much shorter, if the Court decides to use standing as an escape mechanism to avoid the merits, this brief is great ammunition for that cause. BLAG – the group that is supposed to be speaking for Congress on this matter, isn’t really speaking for Congress – and thus isn’t the correct party to be defending the law.

    I don’t see this outcome as likely, because I think a majority of the Court wants to resolve the case in some fashion on the merits. In addition, if the Court decides to go the standing route, there are lots of other arguments to be made even without the brief. I am a bit curious, though, as to whether the members who signed off on this brief might be privy to some backchannel information…

  3. Shang Tsung:

    This news looks pretty good. Ed, I remember you wrote a piece about the lawyer arguing for the retention of DOMA was going to use an argument something along the lines of ‘gay people can’t have children on accident, so they’re inherently different’ or something.

    I just thought this tale out of New York about a gay couple who accidentally found a baby in a New York subway and adopted him was a pretty interesting final nail in the coffin to even that craziest and outtest of there arguments:

    http://opinionator.blogs.nytimes.com/2013/02/28/we-found-our-son-in-the-subway/

  4. Phillip IV:

    a remarkable shift in opinion in Congress, which flows naturally from the shift in public opinion

    That’s a very elegant way to state it. Put in a more blunt way, they knew it was wrong when they voted for it, but it wasn’t politically opportune to oppose it at that juncture. “I have my convictions and will stand by them firmly whenever it’s popular.”

  5. shallit:

    I think you mean “historic”, not “historical”.

  6. Nemo:

    I’d just like to hear these assholes explain why they voted for it in the first place.

  7. matty1:

    I’d just like to hear these assholes explain why they voted for it in the first place.

    The same reason they oppose it now, they want votes. You didn’t think politicians act out of any other kind of principle did you?

  8. anubisprime:

    Nemo @ 6

    I’d just like to hear these assholes explain why they voted for it in the first place.

    As a guess maybe because the constituent base at that time was overwhelmingly comprised of traditionally bigoted and ignorant voters that ‘believed’ their church or did not want to rock the boat.
    It is not beyond the realms to consider that in ’96′ the overwhelming majority were also voters above a certain age and that they are no longer with us.

    Subsequently a new generation has emerged that is not so in the sway of politicos and frothing theists preaching hatred and discrimination based on sexual identity.

    Politicians being politicians always go where the vote is, not much call for ethical integrity in politics, whatever the politicians personal view, never has been really.

  9. D. C. Sessions:

    You didn’t think politicians act out of any other kind of principle did you?

    You mean like “cashing in after you leave office?” As a matter of fact, I have occasionally suspected that some of them (*cough* DeMint *cough*) do things like that.

  10. screechymonkey:

    The brief tries to address that issue, basically saying that it was a different time then, and so:

    As a result, when the question of same-sex marriage arose in 1996, reflexive beliefs and discomfort about same-sex relationships dominated congressional debate. From our perspective—including those of us who voted for DOMA—debate and passage of the law did not necessarily arise “from malice or hostile animus,” but instead from “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). While fear and distrust of families different from our own may explain why DOMA passed by comfortable majorities in 1996, it does not obviate the need for a constitutionally permissible justification for the law

  11. frog:

    Shorter Congress: “We have to protect our phoney baloney jobs here, gentlemen! We must do something about this immediately! Harrumph Harrumph!”

    If we’re lucky, they will next turn on the still-recalcitrant bigots. “I didn’t get a harrumph out of that guy!” “Give the governor harrumph!”

  12. pilch62:

    In some minor mitigation of the passage of DOMA by Congress and Clinton’s signature thereon, at the time the possibility existed that a constitutional amendment banning same-sex marriage could’ve made it through Congress and been passed by 2/3 of the states. DOMA was intended to head off this possibility. Whether in fact a same-sex marriage ban could’ve been enshrined in the Constitution, we’ll now never know. And thank goodness for that. But, if nothing else, DOMA took the wind out of the right’s sails on this issue . . . That doesn’t make it right, or even constitutional, but I believe Clinton and the Dems who supported DOMA then thought at the time it was the lesser of two evils. And I say this as a married gay man who’s in one of the 18000 marriages that got in under the Prop 8 wire in California . . .

  13. slc1:

    Re plich62 @ #12

    Actually, 3/4 of the states must vote to ratify an Amendment.

    http://usconstitution.com/constitution#articleiii

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States,

  14. chilidog99:

    It don’t matter, Scalia and crew will still vote to uphold it.

  15. dingojack:

    let’s see … 212* (out of 435 House members and 100 Senators) is a little over 39.626%. Almost 40% of legislators think that DOMA is unconstitutional. I’d say that’s a pretty compelling argument, but why not pass legislation to strike it down rather than trying to sway the Court?
    Can anyone help out a confused foreigner?
    Dingo
    ——–
    *Another 56 would give them a simple majority.

  16. khms:

    @15 dingojack:

    let’s see … 212* (out of 435 House members and 100 Senators) is a little over 39.626%. Almost 40% of legislators think that DOMA is unconstitutional. I’d say that’s a pretty compelling argument, but why not pass legislation to strike it down rather than trying to sway the Court?
    Can anyone help out a confused foreigner?
    Dingo
    ——–
    *Another 56 would give them a simple majority.

    Because they don’t have those other 56 votes? I don’t know where you live and what the rules are like there, but usually, less than a simple majority is not enough to pass legislation.

    Also, perhaps they’d like to have it settled that that law is unconstitutional. Can’t do that by passing legislation.

  17. Nemo:

    To clarify, I’m not asking why they voted for it. I said I’d like to hear them [try to] explain that vote.

    But if they gave an answer like pilch62′s, I have to admit, I’d be grudgingly satisfied. So then I’d move on to asking them about the Patriot Act, or the Defund Acorn Act…

  18. Rip Steakface:

    Dingojack, almost all votes are on party lines here, and there’s only two parties in Congress worth mentioning. Even those that aren’t part of either party (all independents, I think, no true third parties) hang out with the party closest to them in ideology. Most of these independents are on our left (left is used relatively here, since there’s the obvious fact that European politics has popular parties far to the left of our left fringe), like Bernie Sanders and to an extent Joe Lieberman, so they have to hang out with Democrats to get heard at all.

    Right now, France has a president from the Socialist Party. They’re not exactly socialist anymore, but they’re explicitly named as such. Meanwhile, in the US, we have one social democrat in elected federal office, and that’s Bernie Sanders (a pretty awesome fellow).

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