Wednesday, August 3, 2011

Boehner’s Briefs: Defending The Defense of Marriage Act

Since the announcement in February that the Obama administration will no longer defend the Defense of Marriage Act (DOMA) in court, House Speaker John Boehner has decided to.

If the briefs filed by attorney Paul Clement yesterday are any indication, the House Republicans will be pushing every anti-gay message possible to ensure the federal government continues to discriminate against same-sex couples. And of course, taxpayers are covering the bill for all these legal fees.

The case was brought by Edie Windsor, who was forced to pay exorbitant federal inheritance taxes when her wife of 44 years passed away because the government did not recognize their marriage under DOMA. Clement’s primary goal in defending the law is to prove that sexual orientation is not a characteristic that deserves “heightened scrutiny” — essentially, that gay people have not been historically subject to the kind of irrational discrimination that justifies constitutional protection. Doing so requires perpetuating common myths and misperceptions about sexual orientation to convince the court to toss out Edie’s lawsuit.

The best one — the one that made me laugh out loud — was the claim that gays and lesbians have not historically faced discrimination. No, really.

Moreover, whatever the historical record of discrimination, the most striking factor is how quickly things are changing through the normal democratic processes on issues ranging from same-sex marriage to “Don’t Ask Don’t tell” and beyond. Historical discrimination alone never has been a basis for heightened scrutiny. Courts apply a multi-factor test that focuses on current reality and cautions against unnecessarily taking issues away from the normal democratic process.


There’s more, including your favorites like being gay is a choice; gay people already have plenty of political power; same-sex couples make bad parents, and the oldie but the goodie: the institution of marriage must be protected. I guess they didn’t have room for the one about how we have to recruit unwitting children (and win a toaster oven if we meet our quota) and how we all have an instinct for style and clothes.

If this is the best that they can come up with, no wonder the Obama administration decided not to defend the law. It’s really hard to make the case to a judge without interrupting yourself with sardonic laughter.

HT to Adam Serwer.