By Mike Dorf
My latest Verdict column examines three bad arguments that appear in the brief filed by the misleadingly named Bipartisan Legal Advisory Group (BLAG) in the pending SCOTUS Defense of Marriage Act (DOMA) case, United States v. Windsor. Because the lead lawyer for the BLAG, former GW Bush SG Paul Clement, is excellent, I puzzle over why the brief includes these very bad arguments.
I settle on dishonesty as the best explanation. The real reason for DOMA's enactment was hostility to recognizing the full rights of LGBT Americans (or what amounts to the same thing--a willingness of politicians to cater to such hostility in their constituents). But neither Supreme Court precedent condemning animus-based legislation nor contemporary public norms (which have progressed since DOMA was enacted) permit the BLAG to argue successfully that DOMA should be sustained because Congress could choose to enact legislation treating LGBT Americans as immoral, disgusting or second-class citizens. And so Clement needed to come up with post hoc rationalizations, like his unintentionally hilarious claim that denying same-sex couples the right to marry serves the government's interest in addressing accidental procreation by heterosexuals.
My bottom line in the column is that the weakness of the BLAG brief is a good sign--not just because it suggests that the Supreme Court will be unpersuaded by it but also for what it says about where we as a society have come. When the Republican leadership in the House of Representatives (the real party behind the BLAG brief) would rather make transparently ridiculous arguments than homophobic-sounding arguments, that is a mark of progress.
To be sure, I could be wrong about the (un)persuasiveness of the arguments I critique in the column. Certainly my track record predicting what arguments will or will not appeal to five Justices of the Supreme Court is spotty--and I'm at my worst when a case gets seen through an ideological lens. Thus, I thought the Court would deny cert in Bush v. Gore and when the lawsuits challenging Obamacare were first filed, I thought that only Justice Thomas would think the individual mandate was beyond the scope of congressional power under the Commerce Clause. So, any conservative Justice who sees the challenge to DOMA in ideological terms may well be much more sympathetic than I am to any argument for sustaining it. I'm nonetheless cautiously optimistic because, with respect to gay rights cases, I only count at most four conservative Justices.
I should also note that my column picks out three bad arguments from the BLAG brief, but that the brief makes some not-so-bad arguments. For example, the brief argues that public attitudes towards SSM are changing rapidly and so the Court should stay its hand. This is a standard plea for judicial restraint and caution. It could succeed at a procedural level--inducing the Court or some Justices to rule that there is no standing or otherwise dispose of the case on non-merits grounds--or on a substantive level--inducing the Court either to uphold DOMA or to strike it down on narrow grounds that leave open the question of the validity of SSM prohibitions in the states. (If the Court took this course it would need to do something similar in the pending Prop 8 litigation.)
The BLAG brief also makes the following non-terrible argument: It contends that DOMA Section 3 serves a federal interest in the uniformity of federal law. I don't think that should be enough to sustain the law because it raises the question of why the government needs uniformity with respect to whether to recognize same-sex marriages but not with respect to other marriages. However, at least this argument is not wacko in the way that the "accidental reproduction" argument is.
Given that the BLAG had and made some respectable arguments for upholding DOMA Section 3, why did it also make the bad ones? One possibility, as noted above, is that I'm wrong about one or more of these arguments. A mentor of mine used to say that as a litigator, you just never know what will appeal to a judge, and so you should make every non-utterly-frivolous argument you can.
I think there's something to that and a generally good brief that includes some screwball arguments may even produce a "halo" effect through which the good arguments make the screwy ones look better. But there's also a risk that the bad arguments taint the good ones and thus undermine the credibility of the brief as a whole. In my view, the BLAG brief crosses over into taint territory but of course the ultimate proof will be what the Court does.