Thursday, March 28, 2013

Art Imitates Life, Life Imitates Art: Some Thoughts on DOMA

By Lisa McElroy

The best episode of the best series ever on television, way back on March 24, 2004 (pretty much exactly nine years ago, when only Massachusetts allowed gay marriage), came to mind today as I was reviewing the coverage of the DOMA arguments.  OK, I’ll admit it, I find pretty much any excuse to watch The Supremes, a fifth-season episode of The West Wing in which President Bartlet must fill a suddenly vacant seat on the Supreme Court.  I make my Supreme Court seminar students watch it every year when we talk about appointments, and now that my children are in middle school, I’ll probably subject them to it, too.

But this post is not about how much I wish that President Bartlet had really served our country as President, with Josh and Toby and CJ backing him up in advancing progressive causes.  It’s about how DOMA has been a much-talked about issue for many, many years, and how it is critical that the Supreme Court decide this issue now.

Let’s start by setting the scene – the scene in the 2004 West Wing, that is.  Josh and Toby come up with a strategy to fill the vacant seat that they call the “swapadeedoo.”  The idea is that the best debate on the Court comes from opposite ends of the spectrum, and that liberals can only get moderates confirmed because of the Republican-controlled Senate.  Therefore, (with the President’s blessing), they approach the “liberal lion” Chief Justice and ask him to step down.  Their plan?  To fill his seat with a liberal woman, and allow the Republicans to choose one of their own for the Associate Justice seat.

The potential female nominee (Evelyn Baker Lang) meets with the President first, while the conservative ideologue (Christopher Mulready) waits in a conference room.  Toby Ziegler starts chatting with Mulready as they wait.

TOBY ZIEGLER
I read your article on [gay rights] and I may be out on a fringe here, but I don't see how a family values conservative justifies denying committed couples access to the benefits of state sanctioned monogamy.

CHRISTOPHER MULREADY
Homosexual couples.

TOBY ZIEGLER
Couples.  A couple is a couple.

TOBY ZIEGLER
It's an equal protection violation.

CHRISTOPHER MULREADY
Homosexuals are not a suspect class.

TOBY ZIEGLER
Only one that denies access.

CHRISTOPHER MULREADY
No.

TOBY ZIEGLER
To over 1,000 federal protections.

CHRISTOPHER MULREADY
To what?

TOBY ZIEGLER
Survivor benefits under Social Security.

CHRISTOPHER MULREADY
$255.00?  I'll write you a check.

TOBY ZIEGLER
Hospital decision making.

CHRISTOPHER MULREADY
So, talk about power of attorney, not marriage.  Besides the fact is, DOMA doesn't restrict access to marriage.

TOBY ZIEGLER
Of course it restricts access. It restricts full faith and credit.

CHRISTOPHER MULREADY
So, Vermont gets to steer a nation on wide marriage legislation?  Vermont?

Baker Lang walks in after her meeting with the President and greets Mulready. 

CHRISTOPHER MULREADY
Mr. Ziegler was trying to convince me that the Defense of Marriage Act is unconstitutional.

EVELYN BAKER LANG
Oh, DOMA?!  He was trying to convince you? [chuckle]

TOBY ZIEGLER
What?

EVELYN BAKER LANG
He doesn't need convincing.

TOBY ZIEGLER
I wasn't doing it because...

EVELYN BAKER LANG
He was yanking your chain.  He would never uphold DOMA.  He may not love the idea of gay marriage, but he hates congressional overreaching, and Congress doesn't have the power to legislate marriage.  The issue isn't privacy.

CHRISTOPHER MULREADY
Or equal protection.

EVELYN BAKER LANG
It's enumerated powers.  He'll have an easier time knocking down DOMA than I will.

CHRISTOPHER MULREADY
Lack of imagination on your part, if I may be so bold.

My point?  President Clinton signed DOMA into law in 1996, believing even then that it was unconstitutional.  The popular media has been talking seriously about the issues with DOMA, explaining how and why both liberals and conservatives can agree that it is unconstitutional, much as we saw displayed in today’s oral arguments, since at least 2004.  And the time is now to declare that DOMA is unconstitutional, even if federalism and not equal protection is the basis for that decision.
Today, in front of the Supreme Court, protestors chanted, “What do we want?  Equality!  When do we want it?  Now!” And that’s because the injustice DOMA engenders occurs every day, or, according to Justice Ginsburg in today’s arguments, “[in]1100 statutes . .. [DOMA] affects every area of life.”  According to Solicitor General Verrilli, “What Section 3 does is exclude from an array of Federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.” 
Even with these kinds of stakes, Harvard Law Professor Vicki Jackson (appointed by the Court to make the argument, to be sure, but the very appointment signaling that the Court was considering this view) argued that the Court should not decide the case, even in light of the critical nature of the issue, saying, “While it is natural to want to reach the merits of such a significant issue, this natural urge must be put aside because, however important the constitutional question, Article III prevents its decision here and requires this Court to await another case, another day, to decide the question.”

According to Paul Clement (arguing for BLAG, a group from the House of Representatives seeking to uphold DOMA), we should “[a]llow the democratic process to continue.” But to let the wheels of justice turn slowly across these fifty United States disregards the notion that the rule of law affects attitudes, attitudes that may otherwise be resistant to change.  Without DOMA to look to for support, those opposing equal rights might have to consider reasonable arguments in favor of equality.  Even better, were the Supreme Court to strike DOMA down on equal protection grounds, it would signal to the country that discrimination on the basis of sexual orientation is not only unconstitutional, it’s really, really uncool.

The West Wing enunciated all of the arguments, and in only about three minutes, to boot.  DOMA is unconstitutional because the federal government should be out of the marriage business. DOMA is unconstitutional because the federal government is not free to treat straight and gay couples differently.

6 comments:

Michael C. Dorf said...

Because of my commitment to freedom of expression, I have not modified
Lisa's post, but I will note here that the premise is wrong. I can think of a great many television shows that are/were superior to
the West Wing. Just off the top of my head: The Wire; The Sopranos;
Six Feet Under; Mad Men; Breaking Bad . . . . Contrast the network-sanitized dialogue Lisa quotes with the following from the "Pine Barrens" episode of The Sopranos:


Christopher Moltisanti: Russians? They’re not all bad.

Paulie ‘Walnuts’ Gualtieri: How ‘bout the Cuban Missile Crisis?
Cocksuckers flew four nuclear missiles into Cuba, pointed them right at us.

Christopher: That was real? I saw that movie, I thought it was bullshit.

In the same episode, Paulie learns that the target, Valery,
was previously in the Russian Ministry of the Interior's special
forces and once single-handedly killed 16 Chechen rebels. Paulie
passes the message on to Christopher that Valery killed 16
Czechoslovakians and that he's an interior decorator. Christopher is
surprised, replying: "His house looked like shit."

I rest my case.

Joe said...

I wonder if he'd write Ms. Windsor a check for 300K.

Cristiero Rola said...

Without DOMA to look to for support, those opposing equal rights might have to consider reasonable arguments in favor of equality. Even better, were the Supreme Court to strike DOMA down on equal protection grounds, it would signal to the country that discrimination on the basis of sexual orientation is not only unconstitutional, it’s really, really uncool.
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