Justice Kagan shoots a hole in the central premise of DOMA… courtesy of its authors.
A key moment was reached in the Supreme Court hearings on the constitutionality of the Defense of Marriage Act yesterday, a striking exchange that reveals the defenders of DOMA to have very little to stand on.
One of the core arguments of the pro-DOMA side has been, for the last ten years, that they have nothing against gay Americans and don’t want to look down on or oppress them; it’s just about redefining the word “marriage” willy-nilly. That, they insist, is their sole agenda: holding the line on legal lexicography.
And on a certain level, that makes sense. After all, if there are varying state definitions of a legal standard, such as marriage, then it is useful for the Federal government to establish, via legislation, a uniform definition for Federal legal purposes. This was the argument being put forth by Paul Clement yesterday during oral arguments before the Supreme Court, when, in response to questions about the purpose of DOMA in the first place, he said this:
…in 1996, something’s happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity. Up until 1996, it essentially has it both ways: Every State has the traditional definition. Congress knows that’s the definition that’s embedded in every Federal law. So that’s fine. We can defer. Okay. 1996 -
Right there is where Justice Kagan interrupted him with the actual words written by the authors of the Defense of Marriage Act about their purpose in writing the law.
JUSTICE KAGAN: Well, is what happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?
I actually feel bad for Mr. Clement here, watching the substance of his argument blown up underneath him by the voice of the dead past, speaking from a year now mostly seen on “You must have been born before this date to buy cigarettes” signs. His complete discomfiture is shown in the massive stumble of his response:
MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.
He recovers well after that and tries to steer the argument elsewhere, but that “Wait, what?” repetition is a thing of beauty. It’s the awkward pause of a man seeing his plan collapse right in front of him. Everyone knows that the ban on gay marriage is about trying to keep homosexuals as second-class citizens, but nowadays everyone also knows that you don’t just come out and say that. It hadn’t occurred to him that he’d have to defend the official reason for his position against the real reason for it, because he’s used to nobody saying the real reason out loud. I’m reminded of the reaction of people who say “The secession of the South was not about slavery!” when confronted with the official statements from 1861 saying “We wish to be clear: this is totally about slavery.”
It’s already hard to recall the wild hubris Republicans enjoyed in 1996. The 1994 elections were being trumpeted as a Second American Revolution, Newt Gingrich and Rush Limbaugh formed a seemingly invincible Axis Of Dudes Who Look Kind of Like Giant Babies, the Clinton administration was running scared and tacking right, and it seemed totally reasonable to just come out and say “We’re passing this law because we have a problem with gay Americans, what are you going to do about it?”
And now, nearly two decades later, poor Mr. Clement has to eat those words, and face up to the truth that he is, as lawyers are sometimes obliged to do, defending the indefensible.