Dr. Jillian T. Weiss

House Brief on DOMA Case Is Poorly Done

Filed By Dr. Jillian T. Weiss | August 03, 2011 11:00 AM | comments

Filed in: Marriage Equality, Politics
Tags: BLAG, DOMA, Windsor v. United States

shoe_birdhouse.jpgThe Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) filed a number of documents yesterday in the case of Windsor v. U.S., a case in the federal District Court for the Southern District of New York. Edith Windsor is contesting the application of DOMA to require an enormous estate tax payment after the death of her wife.

Michael Hamar's post this morning, Hateful Homophobic Statements From Boehner/GOP DOMA Briefs details a number of wild statements in the various papers filed.

One of the documents filed is a motion to dismiss the case, in which BLAG asserts that there is no genuine dispute of material facts requiring an evidentiary trial, and that the undisputed facts show that Ms. Windsor has no case.

There are a number of fascinating (read untenable) statements in this brief, and it leads me to the conclusion that BLAG's arguments are poorly thought out. There's a difference between raising an arguable claim, which a good lawyer is supposed to do on behalf of the client, and making an incorrect claim.

BLAG's Use Of The Rational Basis Test Isn't Rational

For example, the BLAG brief says the following:

"On the contrary, the Supreme Court applied the rational basis test to equal protection challenges of classifications based on sexual orientation. See Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003).

That's found in the BLAG brief at page 22. It's actually quite unclear what test the Supreme Court used in those two cases, as I explained in my law review article on Lawrence v. Texas. There are a lot of mixed signals in the text.

There have been hundreds of law review articles written on the Supreme Court case of Lawrence v. Texas and if there's one thing that case be said about them, it's that there are substantial disagreements as to what standard of review the Supreme Court used in Lawrence. I myself concluded that Lawrence used rational basis review, but mine is definitely a minority opinion. Of course, more importantly, the point is that even under rational basis review, anti-LGBT laws are unconstitutional. The BLAG brief doesn't really distinguish this case from the Lawrence case, except to say that DOMA doesn't outlaw same-sex marriage outright, just makes it a legal nullity.

Under rational basis review, a court must find a statute constitutional if Congress has a rational basis for enacting the statute. It's true enough that a court must accept the reasons given by Congress for its statute at face value, and not start a fact-finding review. But that is not the same thing as saying that irrelevant reasons are acceptable, or reasons that have no basis in fact, or that the statutory remedy can go well beyond the reasons given. If so, Congress could decide to give no marriage benefits to people without children, or people under 18, or whose last names begin with Y, and there could be no court review of that decision.

The BLAG brief says this:

"Under rational basis review, a court must accept a legislature's generalizations even when there is an imperfect fit between means and ends."

Yes, that's true enough, but it doesn't apply to this case. A merely imperfect fit is okay to support the constitutionality of a statute. But sometimes there is no fit at all, and that's the case here.

Interestingly, the BLAG brief cites cases for this proposition that say that the statute's opponents have the burden of proof -- implying that there is, indeed, something that can be proven.

And what are the "ends" of DOMA? The BLAG brief says a lot on this score, and yet, in the end, it boils down to "it's tradition."

That's startlingly similar to the justifications given for the Texas sodomy statute involved in the Lawrence case, which boiled down to "morality."

In fact, in the Lawrence case, as I point out in my law review article, the invalidation of the statute must rest, and the Court states that it does rest, on the rationality of the relationship between the Texas statute and the asserted state interest in moral protection. This is not a new concept, and has long been known in the law of equal protection as "means scrutiny," in distinction to "ends scrutiny." In means scrutiny, the state interest is accepted as legitimate, but the law is struck down if the relationship between the interest and the law is missing, unclear or not even-handed.

The Court's authority for the illegitimacy of "morality" as a reason for anti-LGBT laws is the Romer case, which stands for the proposition that state laws singling out homosexuals are invalid because they are "born of animosity", i.e., that the laws are not rationally related to the asserted state purposes that are otherwise valid in themselves.

Reading the Romer case, one finds that the specific ground for its holding is not that the state interests are deemed illegitimate, but that there is a lack of rational nexus between the law and those interests.

"We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose."

Thus, the BLAG brief is simply wrong in contending that it doesn't matter whether DOMA fits the "tradition" purpose that Congress said it had.

History Isn't Enough

Another fascinating point made in the BLAG brief: it's enough to say that there's a history of the government engaging in a particular practice to make it constitutional for all time and forever.

That's silly on a logical level. We'd still have slavery and no votes for women if that were true.

BLAG cites this Supreme Court quote in favor of their position:

To be sure, "[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns."

This quote is found in the BLAG brief at p. 31, par. 2., and it's from the case of Marsh v. Chambers, where the Supreme Court said that the legislature could start with a prayer from a chaplain appointed by the body to deliver it. (463 U.S. 783, 790 (1983)

But the Supreme Court has said a number of times that the case of a legislative chaplain is unlike almost every other case, and other cases could not be justified by mere historical tradition. For example, in Lee v. Weissman, 505 U.S. 577, 597 (1992), the Court outlawed prayers at school graduations, despite their historical and traditional background. And in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 602 (1989), the court outlawed governmental creche displays, despite their historical and traditional background. In those cases, the Supreme Court said that the Marsh opinion is limited to the specific case of a legislative opening prayer. The BLAG brief simply omits the fact that the Marsh case, and the quote about "historical patterns," has been limited to cases of legislative prayer (and, by the way, specifically where there is no reference to a particular religion).

The Supreme Court specifically noted in the Alleghany case that history cannot legitimate some things, regardless of how longstanding.

"However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed."

So much for BLAG's "history and tradition" argument.

DOMA Isn't About Homosexuality, It's About Sexual Orientation

Here's an interesting contradiction. BLAG says that DOMA's definitions aren't based on antipathy to homosexuality. In fact, DOMA's definition aren't based on "homosexuality" at all. At the same time, however, it claims that DOMA is based on "sexual orientation."

How is this possible? How is it possible to argue on one page of a brief that DOMA isn't based on homosexuality, but it is based on sexual orientation? Here's what the brief actually says:

"DOMA's definitions of 'marriage' and 'spouse' do not implicate any suspect or quasi- suspect class. The definitions do not turn on homosexuality as such..." (BLAG Brief, p.22, par. 3.)

And then, it says this:

"Instead, every court to have considered the question as a matter of federal law has concluded that DOMA classifies, if at all, on the basis of sexual orientation, not of sex." (BLAG Brief, p.24, par. 2.)

What? DOMA's not based on homosexuality, but it is based on sexual orientation?

What's the difference? C'mon, guys, you've got to do better than this for $500,000. I don't think BLAG is getting it's money's worth.


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I have seen where the more to the core bigoted a person is, the harder it is for them to see their bigotry. The brief discussed above is an example of this. They believe it is a great statement because of their blindness.

Well you let the summer interns do the work....

yeah, Deanna is right. Bigots, real bigots can not for the life of themselves 'see' that they are bigoted and in all honesty I'm not surprised that the entire breif isn't simply "Because". Then when they show up with witness, like what happened with Prop 8 in California, who have to answer truthfully and do...they can't see that the truth is right there, is true, is valid and that they lose...well, they just don't understand anything at all and think someone is doing majic or the devil is a workin'. In a way its sad and pathetic.

Sexual orientation vs. homosexuality ... isn't this the very same judge who reprimanded them for being disingenuous?