Monday, February 04, 2013

Halo or Taint in the BLAG DOMA Brief?

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.

28 comments:

KC Johnson said...

I agree that the federal uniformity claim is probably BLAG's best not-bad argument. But while judicial caution in general terms might be a good thing, how is the BLAG plea in this particular context anything but a claim that the Court should never again strike down an anti-gay law, since attitudes toward gay rights are changing? They were changing in the 1990s, too, so could the BLAG judicial caution rationale also have justified the Court upholding Amendment 2 in Romer or the Texas law in Lawrence?

It would be one thing if the issue here was the equivalent of the DADT cases in 2009, where a possibility of imminent repeal by Congress existed. But that's obviously not the case with DOMA--with the likelihood of a Republican House till the next redistricting and a supermajoritian Senate (as of now, there isn't a single Republican senator who supports repeal) for the foreseeable future, repeal doesn't even seem possible before 2022 at the earliest. If, as BLAG seems to want on this front, the Court should function as a kind of political prognosticator, deferring to give Congress time to act, at least the the BLAG brief should have been candid about the likelihood of addressing this issue through the political branches.

Joe said...

"public attitudes towards SSM are changing rapidly and so the Court should stay its hand"

This counsels the opposite result. The old rule was to presumptively accept state definitions of marriage, even interracial marriage in the days of segregation, allowing change to occur as it may.

It still does this generally, so the "uniformity of federal law" bit is bogus. The law singles out one type of marriage and does out of animus. In practice, how non-wacko is it really?

Not allowing states to experiment here (see also Prop 8, which blocks legislative flexibility contra the rule in Hawaii that did just that in the face of possible SSM constitutional protection) inhibits slow development, including as passed by legislative action in places like NY. Instead, one group is singled out, encouraging judicial action.

Anyway, it should be noted the reasonable reproduction argument, which I agree is stupid, actually was taken seriously by the NY Court of Appeals a few years back. It is even weaker here since limiting federal benefits while enjoying state benefits provides an even weaker argument.

Anyway, bottom line, such arguments suggest the validity of recognizing the lowest level of review, including the lowest level of rational basis review is not appropriate in this context. There is clearly a level of dishonesty here and when this negatively affects a specific group, a red flag should be raised.

Paul Clement really should be a bit ashamed for promoting this sort of thing.

The Dismal Political Economist said...

The uniformity argument might be an acceptable argument except for the fact that for over 200 years the civil/legal aspects of marriage has been defined, regulated and administered by the states. So how could that argument appeal to Conservatives who argue that the Federal government has only those powers given to it that are enumerated in the Constitution, and clearly marriage, by text and 200 years of tradition, is not a regulatory power given to the Federal government.

Of course, Occam's Razor is really at work here. The reason that the supporters of DOMA make terrible arguments is that there are no good arguments to be made. Simple enough, huh.

But you are correct, ideological concerns and the animus that the Conservative Justices have towards rights for Gay and Lesbians will result in at least four votes to uphold DOMA, regardless of the legal merits of that position.

Michael C. Dorf said...

In an email, a reader asked me why, in the column, I say that the procreation justification is premised on the assumption that excluding same-sex couples will save the govt substantial resources (which savings then trickle down to induce marginally more opposite-sex couples to get married and procreate responsibly). "No such assumption is necessary," this reader asserts. "Instead, the procreation justification is premised on the reality that same-sex couples don't present any risk of irresponsible procreation, and so there's no reason whatsoever to extend the institution of marriage to them, regardless of how much that would cost the govt or how it would affect opposite-sex couples."

Huh? Of course there's a reason to extend the institution of marriage to same-sex couples: namely, so that they can enjoy the various goods that go with marriage, including intangible benefits as well as tangible ones.

Even if we assume that addressing the risk of accidental procreation by heterosexuals was, once upon a time, a justification for the institution of marriage, once same-sex couples seek the legal right, DENYING them that right does not in any way address the risk of accidental procreation by heterosexuals unless there is some kind of zero-sum game, in which recognizing same-sex marriages somehow undermines opposite-sex marriages. I was being GENEROUS to the defenders of SSM bans by assuming that this would be the case if resources spent for recognizing same-sex marriages could not be spent for opposite-sex marriages. If one does not make that assumption, then the defenders of SSM bans are left arguing that the very existence of same-sex marriage undermines opposite-sex marriage because it somehow taints the institution. This is the offensive view that in fact underlies most opposition to SSM, but I was going out of my way to try to find some non-offensive rationality in the argument that the BLAG brief advances.

Scott Martin said...

The accidental procreation argument suggests that the government's interest in marriage is in responsible procreation: conception, birth, and childrearing within a stable two-parent household. The problems with that argument for BLAG:

-It suggests that the outcome that the government is trying to prevent in supporting marriage is irresponsible procreation (out-of-wedlock births, single-parent families, etc.), which calls into question the utility of banning same-sex marriage as a means of achieving this policy goal.

-The fact that very obviously infertile couples are allowed to marry (and receive the federal benefits thereof) is problematic for this defense. According to this argument, the government has no more reason to extend the rights and benefits of marriage to infertile opposite-sex couples than it does to same-sex couples. Since it extends those rights to the former and not the latter, we have an Equal Protection violation. (There is perhaps an argument to be made that gender pairing is used here as a reasonable proxy for fertility, since actual fertility testing could present a barrier to marriage or entail substantial state expense, but the lack of even minimal restrictions such as age undermines that claim.)

Hashim said...

As the emailing reader referenced in your prior post, I find your response a complete non-sequitor.

Of course there's a reason why same-sex couples want to receive the benefits of the institution of marriage. But that's obviously irrelevant to the constitutional analysis.

The relevant question is whether same-sex couples implicate the *reason* why the institution of marriage was created in the first place, such that the *govt* has any reason to extend it to them, and such that the failure to do so can even arguably be described as discriminatory.

Assume, for example, that the Govt created a program that provided citizens with certain benefits if they get vaccinated against a certain disease. Now assume that there is a class of people who are already genetically immune from the disease. Surely the Govt does not have to let them participate in the program, even if doing so would not cost the Govt much more money or otherwise impair the program. The immune don't present the risk, and so the Govt doesn't need to incentivize them to take the useless vaccine.

So too here. Same-sex couples don't present a risk of accidental procreation, and so the Govt doesn't need to give them the benefits of the institution of marriage to deter such procreation.

Michael C. Dorf said...

Hashim: Your example is inapposite because a vaccine serves no purpose other than preventing disease in people not immune to the disease. But marriage serves multiple purposes.

Consider a better example. Suppose the govt comes into possession of an unlimited supply of condoms. Suppose further that it then freely distributes these condoms to heterosexual couples. Gay couples come forward and say they'd like free condoms too. At that point, a government spokesperson says "uh, these condoms are for . . . um . . . they're for contraception and you don't need contraception." The gay couples say they'd like the condoms to prevent the spread of STDs, since they're also useful for that purpose and in fact the straight couples are getting that benefit from their free condoms. The government then says "sorry too bad. THE purpose of these condoms is contraception."

Assuming that the supply of condoms is truly limitless, this strikes me as an utterly inadequate response. Ditto with your claim that "the" purpose of forbidding same-sex couples to marry is to address irresponsible procreation by opposite-sex couples.

Hashim said...

It seems to me that it should be the Legislature, not private citizens or courts, who gets to decide what the *purpose* of a Govt program is. (Courts can assess whether that professed purpose is a pretext, or whether the program is sufficiently tailored to that purpose, but they shouldn't get to say that the program should have an additional purpose that the Govt is not claiming for itself.)

In other words, the fact that a Govt program has some other collateral benefit -- e.g, STD prevention in your condom hypo -- shouldn't force the Govt to alter the contours of *its* program to provide that benefit to every possible individual implicated, without regard to whether those individuals implicate the interest that the Govt actually cares about.

And that's especially true where, as in every real-world example, expanding the scope of the program has potential costs. There are not a limitless supply of condoms, and, more importantly, each marginal condom costs extra. Likewise, increasing the number of individuals who can get married will impose a variety of costs on the Govt, and the Govt shouldn't have to bear those costs simply because the excluded individuals want certain collateral benefits of marriage but don't pose the particular risk that is the Govt's primary concern.

Michael C. Dorf said...

Hashim: I'm glad to see you've come around to my view on you initial point. You (in the guise of the emailer)called into question my assumption that the exclusion of same-sex couples would save the government resources. You insisted that the government could simply deny SS couples the right to marry because they didn't fit the accidental procreation justification. I then gave an analogy designed to show that if it's costless to expand a program, it's irrational (or at least highly suspicious) not to expand the program. You now accuse me of choosing an unrealistic example because I've made the expansion cost-free. But I only made that move in response to your objection that cost wasn't the motivating factor for the government policy. So you've driven us in a circle.

Your new point is about government purpose and here I suppose we'll have to agree to disagree while we wait to see what the SCOTUS does. My view is that, whatever its historical pedigree, the accidental-procreation argument is so obviously not the basis for current laws denying SSM that it should count as pretextual.

Meanwhile, note that a majority of states have bans on SSM that were enacted within the last fifteen years, so w/r/t these states, we're not simply talking about leaving an old law on the books (along with its original justification). We can look for evidence of the contemporary justification for SSM bans. I'd be very surprised if the argument about accidental procreation played a substantial role in the public debate about any of the contemporary bans.

Finally, yes, I'm perfectly well aware that under traditional rational basis scrutiny, the actual purpose of a law is irrelevant. That's why it's at least theoretically possible that a court could buy the accidental procreation argument. But the claim that this is a real motivation for contemporary SSM bans, much less "the purpose" of such bans, strikes me as unconnected to reality.

Hashim said...

Nice try rhetorically, but I haven't agreed with your "costless" point. That's why I said "especially true" in my third and final paragraph. The fundamental principle in my first two paragraphs is entirely independent of whether the expansion is costless: to repeat, the Govt doesn't have to take any step that is costless for itself and that benefits third-parties; it's perfectly entitled only to take steps from which it benefits. That's not "highly suspicious," just merely self-interested.

As for the new laws, their purpose is pretty self-evident: not to allow state-court judges to invent a newfangled right that would change an important societal institution, as had happened in some states. There was no need to talk about the underlying purpose of the institution; it was sufficient that most people intuitively recognize the radicial transformation involved, and didn't want it rammed down their throat by state-court judges.

Joe said...

Marriage was greatly changed over the years, significantly changing its nature, by a range of means.

H. "nice try" -- especially given the state in this very case changed the marriage laws legislatively in response to societal changes -- but why exactly is same sex marriage supposed to be treated differently?

Gender equality, contraceptive freedom and so forth did a lot more to change marriage norms than same sex equality will. SSM in fact is more a product of other changes than unique in itself.

Courts, particularly when legislation target certain groups, repeatedly determine purpose, though it is 'self-evident,' including by the very words of the leaders of DOMA, what it was all about. Selectively same sex couples were discriminated against because it was deemed immoral.

My state legislature passed same sex marriage. DOMA "new-fangled" approach to federal marriage policy, which let states develop the institution in greatly changing ways, selectively burdens the rights of our citizens.

Scott Martin said...

Hashim: "the Govt doesn't have to take any step that is costless for itself and that benefits third-parties; it's perfectly entitled only to take steps from which it benefits"

What benefit does the government derive from allowing obviously non-fertile (due to age, for example) opposite-sex couples to marry? If we're looking at this in the context of procreation, there is obviously none; the government allows them to free-ride on the arrangement it offers to fertile opposite-sex couples. It is *not obligated* to do this, but *having done it*, it creates an Equal Protection violation insofar as it does not permit other couples who are similarly situated with respect to procreation (same-sex couples, for example) to marry.

Hashim said...

Scott -- the benefit that the Govt derives is not having to figure out who supposedly is "obviously non-fertile." No govt can predict with 100% certainty that a given couple is incapable of procreating, and especially not in the absence of invasive medical testing that goes far beyond the simple vital statistics normally requested on a marriage application. So it's eminently reasonable for the Govt not to bother, and instead to allow all opposite-sex couples to marry given the inability to eliminate the possibility of procreation.

Same-sex couples, on the other hand, are facially incapable of accidentally procreating. And that more than justifies the differential treatment.

Justin said...
This comment has been removed by the author.
Justin said...

My mentor (who, probably like your mentor, spent a long time in the SG's office) would say that your mentor is wrong.

Okay, on to the merits (although I may be the only person here who didn't clerk for a supreme court justice).

1 - I think it is obvious that Joe is right. There may be a case against experimentalism, but despite the fact that DOMA was legislatively enacted, it is in fact anti-democratic as it interfere's with the legitimacy of the state democratic process that was so important (lol) in The Health Care Cases. While one might object and say that Congress could always repeal DOMA legislatively, the reality is that a combination of a dysfunctional Senate and a gerrymandered House makes that near impossible.

As to the Accidental Birth: even if the government generally has an interest in two-parent childraising, is that really a *federal* interest. I understand that this is an ephemeral position - the Constitution regulates means and not ends, after all. But if you want to *take federalism seriously,* the federal government should not be regulating things that are within the province of the state merely because they *can.*

I'm also surprised a person as smart as Hashim would use the "obviously" fallacy. Of course, "[b]ut that's obviously irrelevant to the constitutional analysis" would be absurd even without the word "obviously." The interests in the regulated entity is relevant for constitutional purposes, and I find it hard to determine a 14th Amendment test, in-place or proposed, that says otherwise.

The rest of this rises on a bunch of what my mentor would call "legal hooey." Hashim's argument is based on the premise that notwithstanding prior precedent, discrimination against gays are treated as "classic" rational basis. Once you add back the prior prcedent, his arguments in favor of DOMA prove too much. If the government can regulate gay marriage under the "accidental birth" theory, it can ban gay sex under the washed out "AIDS" theory. Lawrence, however, says otherwise, and Scalia's scathing dissent is not the law of the land. Nor should it be.

Joe said...

Women over 60 are pretty likely not to get pregnant. Still get marriage benefits. Also, marriage in fact decreases government costs in various respects, including the so-called marriage penalty. Money is not a credible issue here. At least, in one direction.

OTOH, bisexual women who want to have a child while in same sex relationships repeatedly do get pregnant. And, bisexual people can get or get someone else pregnant irresponsibly.

The benefit of marriage is multifold, including having someone available for seniors to provide expensive and time laden care that otherwise might be provided by government means.

It is really sad that we are pretending marriage rights are being provided for such narrow reasons. Marriage is a fundamental right because of it's special nature and some want to cheapen it by making it about "irresponsible procreation," in the process harming children of same sex families by denying them the protections marriage provides.

Finally, some pretend that unlike a myriad of other things, changing norms in this area is unique, including when equality is furthered by court action. This is a crystal clear case of selective treatment, illicit discrimination. That doesn't sound nice, I know, but it isn't nice.

Justin said...

One final point I forgot to include (my apologies). The "accidental procreation" is really about out-of-wedlock procreation. But "accidental sex" is not the only way that there is out-of-wedlock childrearing. Gays won't have children through sex with each other, but they will have children through heterosexual sex, through adoption, and through in vitro and other technical ways. It's hardly clear to me why the government would not have an interest in promoting a two-parent households for those children, other than anti-gay animus (hello, Lawrence!).

Scott Martin said...

Hashim: as several of us have pointed out to you, the age of the woman in a heterosexual couple, while not a perfect predictor of fertility, is a pretty good proxy (especially when coupled with readily available data about the ages of mothers in US childbirths) and is readily available using no investigative method more invasive than asking for a driver's license or birth certificate. If the government does not take even this most minimal step to determine which couples are likely to be fertile for the purposes of marriage, then what can we conclude about the strength of their interest in promoting marriage as a means of responsible procreation?

Hashim said...

Scott -- we can conclude that the govt has chosen not to bother with the hassle of using proxies to exclude outlier cases, especially given that society's understanding of medicine is constantly evolving. (Just contemplate the litigation that inevitably would be brought by 70-year-old women claiming that they could still get pregnant, and you'll immediately realize why a govt could reasonably choose to avoid this fight.) This is particularly true given that, for most of recorded history, there were probably a negligible amount of women who were "predictably" infertile but seeking to get married.

The fact that modern govts have declined to alter the traditional definition of marriage based on an empirical and contingent prediction is entirely reasonable, and it does not even remotely suggest animus to gays. To the contrary, it underscores that govts are adhering to the traditional definition of marriage.

Justin said...

"The fact that modern govts have declined to alter the traditional definition of marriage based on an empirical and contingent prediction is entirely reasonable, and it does not even remotely suggest animus to gays. To the contrary, it underscores that govts are adhering to the traditional definition of marriage."

First, I think you are conflating state marriage laws with DOMA.

Second, ignoring that distinction and assuming the appropriateness of your prior legal arguments, do you have any evidence that what you say is true? There's a difference between an argument that some legislative scheme could be objectively defended on some basis. But now you are going past this and you are arguing that this is IN FACT the subjective basis for the regulatory scheme. I find this implausible.

Also, and this is going to be a little pedantic, but you are again using meaningless filler language in place of substantive argument. "To the contrary" is appearing to do most of the work in your argument, but even if it was correct, it's hardly clear that the two are mutually exclusive.

Hashim said...

Justin,

As a threshold matter, we'll have to agree to disagree about Lawrence's implications for the proper standard of review when dealing w/ affirmative public recognition rather than negative interference with private sexual behavior. That's a different topic beyond the scope of this thread. So what follows is under rational-basis review.

I don't think that there's any material distinction between state marriage laws and DOMA. Both the states and the federal govt have the same rational basis for distinguishing between couples that pose the possible risk of accidental procreation and couples that unquestionably cannot. The fact that the federal govt generally defers to states concerning ancillary issues like age-of-consent, level-of-consanguinity, etc., does not compel it to defer to a state that fundamentally expands marriage beyond the traditional interest in channeling responsible procreation.

As for actual motive, that's irrelevant under rational-basis review, and I didn't mean to suggest that DOMA or any of its recent state analogues were in fact directly motivated by the inapplicability of the procreation interest for gays. That said, I do think the institution of marriage, and the original marriage laws enacted in this country, were in fact generally premised on the procreation interest. And I further think it's fair to say that one actual motive of DOMA and its recent state analogues was to prevent the judiciary (or even the legislature) from altering the traditional definition of marriage. So, in that sense, I do think it is fair to invoke the procreation interest even if actual motive mattered. (Similarly, it's hard to analyze the actual motive for why likely infertile couples are allowed to marry because no one has ever tried to get them excluded, but I imagine that at least some legislators would respond along the lines that I have if pressed.)

Finally, I admit that I have a bad habit of using words like "obviously" -- but it is not "as filler language in place of substantive argument"; instead, I use those terms as relative emphasis of my degree of conviction, but it backfires when it causes some readers to ignore the accompanying sentences that explain the basis for that conviction. (For example, w/r/t your objection concerning the purported relevance of an interest's interest in receiving a govt benefit, I emphasized that the relevant question instead is the Govt's interest. I suppose I could have spelled out that no level of EP scrutiny turns on the importance of the benefit to the pltf -- they all turn on the degree of fit between the govt's purpose and the classification drawn. That's why I'm right about my vaccine hypo, as you and Mike seem to implicitly agree. Indeed, I can't think of a single case where the Ct suggested that the fit was insufficient because of the importance of the benefit to the pltf, such that the same fit would have been sufficient if only the benefit were smaller. Can you?)

That said, I don't think that any such linguistic criticism properly applies to the phrase "To the contrary" to which you objected in my prior post. Scott had argued that the treatment of likely infertile couples called into question the treatment of gays, and so I was using the phrase "To the contrary" just to make the point that adherence to tradition w/r/t likely infertile couples is consistent with, rather than contradictory to, adherence to tradition w/r/t gays. I wasn't using "To the contrary" to *prove* that adherence to tradition for its own sake is the antithesis of animus to gays. I had already drawn that dichotomy in the prior sentence (not realizing that some would think it "hardly clear").

Scott Martin said...

Hashim: "That said, I do think the institution of marriage, and the original marriage laws enacted in this country, were in fact generally premised on the procreation interest. And I further think it's fair to say that one actual motive of DOMA and its recent state analogues was to prevent the judiciary (or even the legislature) from altering the traditional definition of marriage."

Even granting this argument WRT the *original* marriage statutes, I don't understand how that can possibly impact arguments about the rationality of DOMA. DOMA was clearly *not* passed in order to further any interest in procreation, since we've established that same-sex couples are not at risk for "accidental procreation." Nor are marriages a limited resource such that the government must deny them to same-sex couples in order to encourage responsible procreation among opposite-sex couples. Further, as far as I am aware (IANAL, BTW), "tradition" is insufficient as a rationale for government action in the absence of any other legitimate interest.

"The fact that modern govts have declined to alter the traditional definition of marriage based on an empirical and contingent prediction is entirely reasonable, and it does not even remotely suggest animus to gays. To the contrary, it underscores that govts are adhering to the traditional definition of marriage."

The fact remains that the government has chosen (your word, not mine) to allow non-procreating opposite-sex couples, in whom the government has no interest WRT marriage, to free-ride on the marriage system, and has prohibited same-sex couples, who are situated *precisely* the same WRT the government's interest, from doing so. How is this *not* an Equal Protection violation?

Hashim said...

Scott -- I'll try this one last time, after which we'll have to agree to disagree.

As for infertile or otherwise non-procreating couples: Same-sex couples are not *similarly situated* to opposite-sex couples because same-sex couples can *never* accidentally procreate, whereas opposite-sex couples at least *theoretically* can. Being similarly situated is a necessary condition to bring an Equal Protection claim. You tried to satisfy that condition by arguing that some opposite-sex couples are empirically unlikely to accidentally procreate, which makes them similar to gays. And my response is that the govt is not obligated to draw classifications based on empirical and uncertain predictions. It is entitled to treat as materially different couples who are *facially guaranteed* never to accidentally procreate from everyone else.

As for the actual motive of DOMA: one actual motive was to protect the federal government from having random states foist upon it an atraditional definition of marriage. It's certainly open to argument as to whether tradition is a sufficient justification under rational-basis review when affirmative benefits rather than negative penalties are involved. Finally, if the procreation interest can be directly invoked under rational-basis review as a hypothetical motive, then the federal government is entitled not to expand a govt program to individuals who don't implicate the reasons for the program, even if the program doesn't involve "limited resources."

Joe said...

"the traditional definition of marriage"

You mean coverture? Barring sex before marriage? Not allowing divorce except in very limited cases? Why are you continously selectively appealing to history here? Marriage today is vastly different than it was "traditionally," but for this one specific area, based on a badly fitted alleged purpose, it is "entirely reasonable" to change how the federal government treated marriage for two centuries? Putting aside the clear animus -- try reading the debates, e.g., -- involved against gays and lesbians? Why?

This is invidious discrimination -- selectively burdening a specific group using pretexual reasoning that, colloquially, is "very lame."

"It is entitled to treat as materially different couples who are *facially guaranteed* never to accidentally procreate from everyone else."

When heightened scrutiny is warranted, there has to be a close fit, and there is not -- the government is denying people the right to marry based on the SEX of the partner. Sex discrimination needs a close fit. Personally, I think this is cleanest way to deal with this issue, at least more than making stuff up and snarking at Prof. Dorf when he calls them on it.

There are other ways to address "accidential procreation," putting aside that is not the only reason the state provides multiple benefits (and burdens) to married couples. In fact, same sex couples have benefits here -- not only (though they have the same basic qualities as loads of different sex marriage couples) do they avoid the federal marriage penalty, but they avoid things like federal spousal bias rules. Finally, a senior citizens cannot *theoretically* procreate either. 60 year old women don't procreate. Meanwhile, bisexuals CAN procreate though if they were married, it would decrease the possibility of doing so without a safety net. As a whole, given the burdens on the state in various cases (taxes, bias rules etc.), the procreation concerns of bisexuals and others, etc., DOMA is actually is pretty irrational. The fit is so bad, it is suspicious. And, looking at the matter as a whole, we are right to be suspicious -- there is clear evidence of bias here.

"one actual motive was to protect the federal government from having random states foist upon it an atraditional definition of marriage"

Over the years, states over and over again did just that. But, based on animus, same sex marriage is singled out. This is illicit discrimination.

"It's certainly open to argument as to whether tradition is a sufficient justification under rational-basis review when affirmative benefits rather than negative penalties are involved."

It isn't just "benefits" ... it is the fundamental right of marriage. But, picking and choosing one specific tradition like this while showing clear animus against the group in question is more dubious. We do not have "traditional" marriage any more in a range of ways. Your focus on this as well as the "those damn courts" when in strikes down traditional marriage rules in this area in particular is rather peculiar.

Jeff G. said...

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.)blade & soul gold | Buy Runescape Gold | bns gold

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