On Tuesday, the Office of General Counsel for the U.S. House of Representatives filed its merits briefing to the Supreme Court for the upcoming hearing on the constitutionality of the Defense of Marriage Act. These filings are helpful in understanding the cases argued before the courts. What this filing reveals, per the House’s legal counsel, bodes poorly for their attempt to overturn the lower courts rulings against DOMA.
They start off with a description of what the filing calls “traditional marriage.” In brief:
To be sure, the federal government also has the option of borrowing state-law definitions, as it did during the long period when the states uniformly employed the traditional definition.
There has never been, however, a so-called traditional definition of marriage. Many states did not even include the terms “husband and wife” on the marriage license. At various points in U.S. history marriage has been redefined, as discussed in The Secret Story of Polygamy by Kathleen Tracy. Historically the United States has recognized plural marriages and polygamy; even communal marriage was practiced. In addition, women were considered property for a sizable chunk of that period. How can Congress defend “traditional marriage,” then, when no exclusive precedent has actually been set? In fact, in the case Jones v. Hallahan in 1973, they found that there was no legal definition defining marriage as between one man and one woman, and the state had to change the law in order to deny the couple a marriage license. This, when taken together, destroys the first part of Congress’ argument.
The case also claims that the Supreme Court has no jurisdiction to rule on the constitutionality of DOMA, stating that, as the case was originally filed in New York and New York now had same-sex marriage, the case should be dismissed out of hand and DOMA upheld. As stated in the document:
“[T]he Constitution does not empower this Court to second-guess… officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.”
As DOMA affects all people across the United States, this is preposterous on its face. Plus, telling the Supreme Court they do not have jurisdiction, when the U.S. Constitution states flatly that they do…very bad move by the Counsel.
The argument goes that only an opposite sex marriage can produce a child, and that the law was put into place to guarantee that children are raised only by their biological parents. If the Court were to agree, it would put into question, almost immediately, the status of stepparents, adoptions, and surrogates. The Counsel seems to be aiming to destroy millions of families in the United States rather than let two people enjoy the same benefits as their neighbors.
The Counsel’s terming of same-sex couples as “suspect classes” seeking “special, unique privilege” is insulting in and of itself. But it continues, stating that recognizing the right for same-sex couples to marry “takes issues away from the democratic process,” then, just a breath later, condemning the voters of Washington state who upheld the right for marriage equality, saying it should “be rejected” by all other states and the federal government. In other words, let democracy work, unless the decision goes against your position. Typical Republican logic.
The filing reveals that Congress understands that, should DOMA be ruled unconstitutional, due to the Full Faith and Credit clause of the United States, all states would be forced to recognize a marriage license issued from another state. They are fighting to sustain DOMA, in order to then use it to dismantle marriage equality on the state level.
The arguments made by the Counsel are backwards and stupid. The cross-examination will likely expose the flaws in their argument, and then some. Congress simply lacks the ability to defend it because, ultimately, the Defense of Marriage Act is unconstitutional, due to the Full Faith and Credit clause. Of course, we shall see if the conservatives on the Court are actually conservative, or just politicians in robes.
Feel free to follow Nathaniel Downes on Facebook.