BLAG’s Lame DOMA Defense

Too many acronyms! The Bipartisan Legal Advisory Group (BLAG), the attorneys hired by the House to defend the constitutionality of the Defense of Marriage Act (DOMA), is making some rather silly arguments in the various legal challenges that they are engaged in. Take a look at this brief filed in one such case. They’re trying to argue that there is a rational basis for DOMA because it “encourages responsible parenting.” Which leads to arguments like this:

The most straightforward connection between DOMA and childrearing is asimple matter of demographics: The vast majority of children are raised by two opposite-sex parents, or are conceived by heterosexual persons who Congress could rationally desire to encourage to marry. And opposite-sex couples are farmore likely to raise children than are same-sex couples.

Um. Okay. And far more children are raised by white parents than by black parents. Why? Because there are a lot more white people in this country than black people. But that’s only the most obvious logical absurdity here. The more important one is this: Even if Congress could rationally desire to encourage straight couples to get married, what the hell does that have to do with DOMA? Do they really think that straight couples are not going to get married if gay couples are allowed to? This is their argument for a rational basis for the law?

The question is not, as Ms. Windsor suggests, whether DOMA prohibits same-sex couples from obtaining state marriage certificates or raising children, orwhether “denying benefits to married same-sex couples would have any impact on whether straight couples marry or have children.” Instead, it is whether Congress rationally could decide that government interests in responsible childrearing would be furthered more by offering federal marital benefits and duties to opposite-sex couples than by offering them to same-sex couples.

They are basically arguing that it doesn’t matter whether the law actually does further the government’s interest in “responsible childrearing,” but only whether Congress might have mistakenly believed that it does. In other words, they are arguing that the “rational basis” for the law need not be rational at all, as long as policymakers irrationally believed there was such a basis.

Note also the false dichotomy in the last sentence. It isn’t a choice between offering benefits and duties to opposite-sex couples or to same-sex couples; the choice is between offering such benefits and duties only to opposite-sex couples or offering them to both kinds of couples. It really is absurd to offer such blatantly irrational arguments in an attempt to argue that the law has a rational basis. It clearly doesn’t.

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  • So the idea is that if we make being gay really inconvenient, bi people will lean straight?

  • “…government interests in responsible childrearing…”

    So, irresponsible parents become gay? And this law would prevent that from happening?

  • If they are going to argue that marriage and procreation are so closely twined, maybe they should fight to make procreation a prerequisite for getting married. I mean, if same-sex couples cannot get married because they cannot have children, doesn’t that mean that men with vastectomies, or women who have had tubal ligations, hysterectomies or are post-menopausal should likewise be banned from marriage?

    Some people in Washington State, unhappy with a 2006 state Supreme Court ruling which used the procreation argument to uphold the state’s Denial of Marriage Act, made that argument in 2007 with Initiative 957.

  • dingojack

    BLAG: see here.

    To obtain by force or trickery; armed robbery. As in “Blaggers are the very reason the Sweeny exists”. (A blagger is one who blags, an armed robber, ‘the Sweeny’ were Scotland Yard’s Armed Robbery flying sqaud, as immortalised by John Thaw and Dennis Waterman).

    🙂 Dingo

  • gingerbaker

    And opposite-sex couples are farmore likely to raise children than are same-sex couples.

    Um. Okay. And far more children are raised by white parents than by black parents. Why? Because there are a lot more white people in this country than black people. “

    Think you missed that “logical absurdity”, Ed, because you missed/misinterpreted the word “likely”. Which implies a ratio, a percentage. So, the fact that there are more white people than black misses the point.

    The reason far more opposite-sex couples are likely to raise children is because same-sex parents need to adopt or have expensive medical procedures in order to raise children. And the discriminatory anti homosexual laws mandate that same-sex couples are not allowed to easily adopt children, and may not be entitled to spousal medical insurance privileges. Because of DOMA laws.

    What is quite ironic is that in most cases where discrimination results in inequality, that inequality is recognized as unfair and efforts are made to correct the imbalance. Here the BLAG attorneys are arguing to continue the discrimination which causes this imbalance, and instead of redressing the imbalance, use it as an argument to increase the imbalance.

    It is like a bully arguing ” I hit him in the face because he is ugly, and the more I hit him, the uglier he becomes.”

  • Larry

    They got nothing. There is simply no argument to justify DOMA other than we hate teh Gayz. The tortuous contortions backers of DOMA have to make become all the more ludicrous as a result. Invariably, that is what happens whenever one tries to use religious arguments is a civil law context.

  • yoav

    Is the word bipartisan going to be used by republicans in naming their organizations in a way that make it completely meaningless, just like poor grassroots did.

  • Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Unfortunately, this is what the rational basis test has always been: can a “rational” person believe something. “Rational” was taken to mean “normal” – meaning white, straight, wealthy, reasonably healthy (except, possibly, for complaints common to aging into one’s 60s or so)and, wait for it, Christian.

    The court has always held that even in the face of contradictory evidence, one can hold a “rational belief” in something if there is some evidence for the proposition and the evidence contradicting the proposition isn’t so overwhelming and/or obvious that one would have to be willfully oblivious. Oblivious is fine, it’s the willfull that the courts dislike.

    If “rational” legislators (defined above) could reasonably believe something (and the fact that they say that they believe it is prima facie evidence that they do), then legislation has a “reasonable basis” in US law.

    Where it gets tricky is that there is also a tradition of judges/justices *saying* that they are applying rational basis and actually applying a standard much closer to what has become “heightened scrutiny” or (less often) “quasi-strict scrutiny” (such name deriving from the “quasi suspect” classifications – such as gender and sex – that are entitled to such scrutiny). Romer v. Evans had Kennedy asserting that the test was strict scrutiny, but with his discussion of animus and other things, it’s clear that he wasn’t applying traditional strict scrutiny at all.

    This has given cover to lower courts who wish to apply heightened scrutiny b/c sexual orientation appears to possess all the criteria necessary for a marker to trigger strict scrutiny (in much the same way as gender and sex) but if used to trigger strict scrutiny would cause political problems for the court. Thus heightened scrutiny.

    Curiously enough, gender analysis nominally began as rational basis, but when it was quite clear that investigation into legislation and legislative motives was qualitatively different, they called what they were doing “heightened scrutiny”. This allowed them to acknowledge the reality of their judgements without admitting that they were putting sex on the same level as race when the latter is specifically mentioned in the constitution as a basis on which one cannot create legal burdens and the former isn’t.

    Of course, later there was creep and gender analysis looks now as if it is halfway between what is specified to be “quasi-suspect” and what is specified as “suspect”.

    Likewise, sexual orientation now appears to be halfway, if not nearly all the way, through a process of becoming a quasi suspect class. Yet it’s being done through an unusual (thought precedented) application of rational basis.

    In this way, the courts hope to avoid becoming political.

    But congress can hardly fail to notice what is happening. What they are doing is not MERELY asserting a traditional rational basis argument.

    They are fighting like hell to have traditional rational basis applied. By refusing to even attempt a better argument, they are asserting that they know what the test is said to be, they know that the court isn’t applying it in its nominal sense, and that they expect the court to comply with traditional rational basis analysis. They dont’ want to concede the natiure of the test. The refusal to come up with a good argument is ITSELF an argument to one who watches constitutional equal protection analysis.

  • abb3w

    There are times when the courts seem quite unclear on whether the test is “rational basis” or “rationale basis”.

  • oranje

    Good to know I get certain rights only if I’m a breeder.

  • pipenta

    @ Crip Dyke,

    That was an eye-opening (at least for me), if sobering, analysis. Thank you.

  • Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Romer v. Evans had Kennedy asserting that the test was strict scrutiny, but with his discussion of animus and other things, it’s clear that he wasn’t applying traditional strict scrutiny at all.

    ZOMG – total fail on my part. Hopefully it was clear from context that I meant to say “rational basis” instead of “strict scrutiny” in this passage.

    Should read:

    Romer v. Evans had Kennedy asserting that the test was *rational basis*, but with his discussion of animus and other things, it’s clear that he wasn’t applying traditional *rational basis* at all.

    oy, sorry.

    also, lots of tpyos: chaotic morning – typing while trying to get a 4 & 7 year old to get dressed and eat breakfast. Parents will understand…

  • thalwen

    These people spend so much time thinking about gays and gay sex that I think the idea that no one would marry an opposite sex partner if same sex marriage was legal is at least somewhere in their brains.

  • slc1

    Re Gregory @ #3

    I’m a little bit confused. As I understand it, there are 4 states that have a measure on the ballot relative to same sex marriage. The measure in Maryland is intended to nullify the action of the State Legislature last spring which passed a measure that was signed by the governor, that recognized same sex marriage (e.g. vote no to retain same sex marriage). It is my understanding that the situation in Washington State is the same. My understanding is that the measure in Maine is for the purpose of recognizing same sex marriage (e.g. vote yes to recognize it). I’m not sure about the measure in Minnesota.

  • sezme

    If BLAG is bipartisan then Ed is a parakeet.

  • @slc1 #17 – A brief history of marriage equality in Washington State:

    1998 – The Legislature passes a state version of the Denial of Marriage Act, WA-DOMA. It is vetoed by Governor Gary Locke (who later became Obama’s Secretary of Commerce and is now our Ambassador to China.) The Legislature overrode the veto with a 2/3rds majority in both houses.

    2004 – In February, Mayor Gavin Newsom orders clerks in the city/county of San Francisco to begin issuing marriage licenses to same-sex couples in defiance of California state law, setting off similar acts of defiance by municipal and county officials around the country.

    A month later, two different groups approach county clerks in Seattle (King County) and Olympia (Thurston County) to demand marriage licenses. As was pre-arranged, the clerks refused, citing WA-DOMA. The two groups filed suit with the respective counties. Andersen et al vs. Sims et al, filed in King County, challenged the state law citing as violating the Equal Protection clause of the Washington State Constitution. Castle et al vs State challenged the state law based on both the Washington and the US constitutions. Later that summer, the King and Thurston county superior courts ruled in favor of the plaintifs. King County and the state of Washington appealed, again as pre-arranged.

    The next step would normally have been for the cases to proceed to the state Court of Appeals. The state Supreme Court took the very unusual step of expediting the cases, i.e. bypassing Appeals and taking them directly; speculation was that they did not want to risk there being any more precedent. They also decided to combine the cases, which then became Andersen et al vs. King County et al. Arguments were presented on March 8, 2005. Normally, the Supreme Court returns rulings within six months.

    2006 – The ruling for Andersen was returned more than a year later, on July 26, 2006, three days after the deadline to file as a judicial candidate to run for the state Supreme Court. The final tally was 5 to 4 to uphold WA-DOMA.

    The lead ruling was signed by only four justices. It made the argument that the purpose of marriage was for procreation, that the state had a “legitimate state interest” in preserving marriage for that purpose, and therefore the Legislature was within its rights to restrict marriage access from those couples unable to have children together. Since this ruling was not signed by a majority, it did not set judicial precedent. A concurring ruling, signed by one of those four and the fifth, basically said that gay people are icky. The one dissenting opinion was signed by the four justices who voted to overturn WA-DOMA.

    2007 – Initiative 957 was filed, mocking the basis of the lead ruling in Andersen vs. King County.

    Also, the Legislature created a very limited form of state-wide domestic partnership, open to same-sex couples and to elderly different-sex couples. This DP amended 11 laws to extend 17 rights of marriage.

    2008 – The Legislature passed a “everything but the name marriage” law, amending several hundred laws to extend all of the statutory rights of marriage to domestic partnerships. The law was put on hold pending an electoral challenge. Referendum 71 passed with 53.15% of voters saying to keep the law, the first gay-marriage related law in the US to be approved by voters.

    2012 – The Legislature passes a marriage equality bill. It now faces an electoral challenge as Referendum 74.