DOMA, by the way, is the Defense of Marriage Act of 1996 that bans the federal government from recognizing same-sex marriages.
The brief, filed by John Boehner‘s hand-picked private attorney, Paul Clement — whom Boehner has secretly authorized to receive up to $3 million to defend DOMA — addresses the question:
Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.
Clement, who has never, ever won a same-sex marriage case since Boehner hired him at the rate of $520 an hour to work for the “BLAG,” the House of Representatives’ Bipartisan Legal Advisory Group that has as its majority Republicans not Democrats, has decided that “traditional marriage” must be defended for these reasons:
“Gays and Lesbians Are Far from Politically Powerless.”
“DOMA Rationally Preserves Each Sovereign’s Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition.”
“Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States.”
“Sexual Orientation Is Not an “Immutable” Characteristic.”
Among others, of course.
And look out, because the LGBT community is omnipotent!
More than twenty years ago, the Seventh and Ninth Circuits recognized that “homosexuals … are not without growing political power,” and that “[a] political approach is open to them” to pursue their objectives. Ben-Shalom, 881 F.2d at 466; accord High Tech Gays, 895 F.2d at 574. Whatever the limits of that conclusion two decades ago, there can be no serious doubt that the political power of gays and lesbians has increased exponentially since then.
In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best- organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characterizing such a group as politically powerless would be wholly inconsistent with this Court’s admonition that a class should not be regarded as suspect when the group has some “ability to attract the attention of the lawmakers.”
And this, which can only be described as the “shuck and jive” of Paul Clement’s anti-gay animus:
There is no precedent for creating a suspect class that is based on the class’ propensity to engage in a certain kind of conduct.
Not only is sexual orientation different from every recognized suspect class in that it is based on a propensity to engage in certain conduct, the cause of that propensity is not well understood.
A “propensity to engage in certain conduct”? Really? I’d like you to take a moment, pause, and reflect on what Attorney Clement might be suggesting there.
Other reasons Clement gives for denying same-sex couples the benefit of marriage that is the birthright of heterosexual couples?
1. Providing a Stable Structure to Raise Unintended and Unplanned Offspring
2. Encouraging the Rearing of Children by Their Biological Parents
3. Promoting Childrearing by Both a Mother and a Father
Curiously, Clement notes that when DOMA was passed, in “the Senate supporters included then-Senator Biden; then-Minority Leader Daschle; current Majority Leader Reid; and current Judiciary Committee Chairman Leahy. In the House, Rep. Hoyer, the Current Minority Whip, supported DOMA.”
All those have in some manner, if not specifically, come out in support of same-sex marriage. Daschle lost his seat after fighting a constitutional amendment banning same-sex marriage.
Later, Clement quotes Jonathan Rauch, identifying him as a gay marriage supporter, which he was not — but now is.
Perhaps extremely disgusting is the argument Clement cites, from 1996:
As Senator Gramm observed, without DOMA, state recognition of same- sex marriage will create
a whole group of new beneficiaries—no one knows what the number would be—tens of thousands, hundreds of thousands, potentially more—who will be beneficiaries of newly created survivor benefits under Social Security, Federal retirement plans, and military retirement plans…. [I]t will impose … a whole new set of benefits and expenses which have not been planned or budgeted for under current law.
If the federal government were forced to recognize same-sex marriages, Sen. Byrd noted, “it is [not] inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars, if not billions … of Federal taxpayer dollars.”
Clement writes, “in 1996 when it appeared that states soon would begin experimenting with changing the traditional definition [of marriage], the federal government was under no obligation to follow suit.”
In what other venue, issue, etc., does anyone refer to changing a law as “experimenting”?
Is ensuring First Amendment rights “experimenting”? Are anti-fracking laws labeled “experimenting”? Are laws ensuring children receive certain levels of education classified as ”experimenting”?
Why is same-sex marriage called “experimenting”?
And then this, what amount to their final argument: gays are already too powerful:
Creating new suspect classes takes issues away from the democratic process, and this Court has wisely refrained from recognizing new suspect classes over the last four decades. Homosexuality would be a particularly anomalous place to eschew that reluctance, as gays and lesbians have substantial political power, which has grown exponentially with each election cycle. Nor do the other factors this Court has looked to support recognizing a new suspect class here. To the contrary, with an issue as divisive and fast-moving as same-sex marriage, the correct answer is to leave this issue to the democratic process. In that process, there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus. And the democratic process allows compromise and way-stations, whereas constitutionalizing an issue yields a one-size-fits-all-solution that tends to harden the views of those who lose out at the courthouse, rather than the ballot box. In the final analysis, the democratic process is at work on this issue; there is no sound reason to constitutionalize it.
And then this: Government must defend traditional marriage and exclude same-sex couples from the institution because heterosexuals are irresponsible:
The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples— namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society.
Ian Millhiser at Think Progress makes the case as well:
One can only wonder what Paul Clement might have written if Virginia had hired him to defend their practice of racial marriage discrimination when it was before the justices in 1967. “Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.”
Because, of course, if the fact that gay people have won a few political battles lately were reason to deny them the equal protection of the laws, then the same would also be true about African-Americans and women. Lyndon Johnson signed the Voting Rights Act two years before Virginia lost its marriage discrimination case in the Supreme Court. The Civil Rights Act of 1964 promised equal treatment to women in the workplace — a promise still denied to gay men and lesbians —seven years before the justices first recognized that official discrimination against women violates the Constitution. Political victories do not cancel out Americans’ constitutional rights, they augment them, and Clement is simply wrong to suggest otherwise.
Read the entire brief, below:
We invite you to sign up for our new mailing list, and subscribe to The New Civil Rights Movement via email or RSS.