Why do I have such a bee in my bonnet about what I termed the "shrill and intellectually dishonest talking points" containing these accusations? It is because I think that marriage equality is a central civil rights issue of our day. And I think the creation and repetition of these talking points by some within the marriage equality movement has the potential to undermine the movement's credibility. The appearance that we are not prepared to discuss this issue in an intellectually serious way saps the force of our legitimate objections to the government's brief, and more generally fuels the stereotype of liberals as reflexive parrots who don't check our facts or think through the consequences of what we say. I am also a believer in intellectual honesty for its own sake, and it concerns me that these talking points may have been cynically promoted by lawyer-activists who are intentionally misleading the general public to create sensationalist outrage.
As you may remember, this is about a legal brief in which the government defended the federal Defense of Marriage Act (DOMA) against Constitutional challenge. Reaction focused on a citation to three cases in which marriages valid in one jurisdiction were not recognized in another. Two dealt with marriage between relatives, one dealt with different minimum ages for marriage. I argued that two of the three cases dealt with neither "incest" nor "pedophilia" as those terms would commonly be understood in America today. One case did involve a marriage (between adults) that--although legal in the place and time performed--would today be viewed as unacceptably incestuous by most Americas. But this case, like the others, was cited in a context that to my reading drew no moral comparison to gay marriage. The bottom line of my post was that "[t]here are so many legitimate reasons to dislike this brief that we don't need to be inventing more."
As I see it, there are at least five legitimate criticisms of the brief. These include, first, the Obama administration's choice to defend the Constitutionality of DOMA at all. While it is true that the Department of Justice ordinarily defends all current statutes against attack on Constitutional grounds, there are rare exceptions and this ought to have been one of them. Second, the tortured position that DOMA does not discriminate on the basis of sexual orientation in the provision of federal benefits. Clearly it does so--it renders married gays and lesbians ineligible for federal rights and benefits to which married heterosexuals are entitled. Third, the position that DOMA was not "born of animosity toward the class of persons affected," when anti-gay animus was so obviously a major factor in its enactment. Fourth, the suggestion that "promoting traditional marriages" or saving taxpayers money via discrimination against a particular minority are legitimate governmental objectives. Fifth, the unnecessarily narrow view that a law restricting the rights, benefits, and recognition of marriage does not burden the fundamental right to marry so long as it does not prevent marriages themselves.
Given the importance of making clear the above objections, I think it has been counterproductive to dominate the discussion with the dubious claim that the brief smears gays and gay marriage by comparing the latter to incest or pedophilia. So let me try to explain at more length why I think the government drew no such moral comparison. First, to be clear, the brief contains no explicit comparison. (You might not know this from the media and Internet.) So if there is a comparison, it is necessarily an implicit one. To evaluate that contention, we need to consider the specific arguments to which the government was responding when it cited those cases.
DOMA does two quite distinct things. Section 2 allows states to refuse to recognize same-sex marriages performed elsewhere. Section 3 sets the federal government’s definition of marriage as being between one man and one woman, thereby denying federal recognition of same-sex (or polygamous) marriages.
The Constitutional objections to these provisions are also quite distinct. The objection to Section 2 is that it violates the Constitution's Full Faith & Credit clause, which requires that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." In other words, the objection goes, the Constitution requires that any marriage performed in state A must be recognized in state B. The objection to Section 3 is that it violates the Constitution's Equal Protection or Due Process clauses, by treating gays and lesbians differently as a class than other people with respect to the federal rights and benefits attendant to marriage, or by burdening their fundamental rights to marry.
One useful way to think of the distinction between the two objections comes from the way Constitutional Law is typically taught in law schools. The first course, "Con Law I", deals with national powers and federalism. That is, what powers does the federal government have, what powers do state governments have, and what is the interaction between these two sets? Most students find this course dull. The second course, "Con Law II", deals with individual rights. These are the sexy issues that make the headlines: free speech, religion, abortion, and, of course, gay marriage. Most students find this course interesting. The Full Faith and Credit objection is a Con Law I argument; the Equal Protection / Due Process objection is a Con Law II argument.
The key thing to understand about the Full Faith and Credit objection is that it does not turn on the question of whether gay marriage is a good thing, whether homosexuality is a moral thing, or whether discrimination against gay people is a bad thing. It simply says that once state A decides who is allowed to get married there, state B can't refuse to recognize those marriages, and Congress can't change that.
And it was solely in the context of responding to the Full Faith and Credit objection that the three cases were cited. The government's response was that the Full Faith and Credit clause has always been understood to incorporate traditional Conflicts-of-Laws principles. It argues that one such principle is that a state need not recognize an out-of-state marriage that, as a matter of public policy (as opposed to some technical requirement like whether the application must be notarized), would not be permitted in-state. The cited cases illustrate this principle. Thus the only comparison being drawn between same-sex marriage and marriage to a relative or a minor is that all are currently subject to differing policy-based restrictions in various states. There is no implicit moral comparison, because the relative morality of these marriage categories is irrelevant to the Full Faith and Credit argument.
By comparison, if the cases were cited in the Equal Protection / Due Process sections of the government’s brief, I would interpret this as an implicit comparison. To vastly oversimplify half a semester of Con Law II, the key inquiry in any such analysis is what level of "scrutiny" should be applied to a law that treats groups of people unequally. The higher the level of scrutiny applied to laws affecting your group, the more likely you are to win an argument that those laws are unconstitutional. The question of whether or not homosexuality is a morally neutral innate characteristic like race or gender is central to the question of whether a heightened scrutiny must be applied to laws that discriminate against gays and lesbians. Had the government cited Catalano in this section, I might conclude that it believes men who want to marry their boyfriends are morally equivalent to men who want to marry their nieces, and that laws discriminating against each group should be judged with the same low level of scrutiny. But it did not.
Now, the additional accusation is made that even if the government makes no explicit or implicit comparison by citing these cases, doing so is its coded way of telegraphing anti-gay animus, because the cases touch on traditional slurs made against gays and lesbians. Otherwise, why choose cases that deal with such unpleasant subjects? Well, for one thing, cases about non-recognition of out-of-state marriages are pretty much all going to deal with age and consanguinity. Other than sexual orientation, these are the only policy-based marriage restrictions that currently differ from state to state.
Furthermore, what slurs exactly are being implicated here? Gays and lesbians are attracted to their (adult) relatives? I've never heard that one. Gay men molest little boys? That's a classic, to be sure, but it seems like there are more effective ways to invoke that stereotype than citing a case about the legal-in-most-states marriage of a sixteen year old girl to a husband of indeterminate age. So while it’s possible that the government consciously chose these cases as a signal to the good ol’ straight boy judge that the plaintiffs should lose because gays are all perverts, I think it more likely that it selected these cases because there weren’t a lot of others to choose from on this issue.
One point raised by several commentators is that another historical "policy-based" restriction on marriage was the prohibition on interracial marriage. If this Conflicts-of-Law argument suggests DOMA doesn't violate the Full Faith and Credit clause, they say, doesn't it just as easily suggest that the clause would allow a "racial DOMA" permitting states not to recognize interracial marriages performed elsewhere? And doesn't this show that the argument is bigoted and incorrect? I would say yes, and no. It's not clear that a Full Faith & Credit objection to a "racial DOMA" would be any more or less valid than the objection raised to the actual DOMA. Certainly Loving v. Virginia was not decided on that basis, even though potentially available (the Lovings were prosecuted in Virginia for their Washington D.C. interracial marriage, under a criminal statute that the Supreme Court struck down on Equal Protection and Due Process grounds.) The real premise of this argument is that sexual orientation and race should be treated alike; that anti-same-sex marriage laws should be viewed through the same Constitutional lens as anti-miscegenation laws. I happen to agree, but this is squarely an Equal Protection / Due Process premise, properly aimed at Section 3 of DOMA and at the state marriage laws themselves. Indeed, it's a premise that, if accepted by the courts, would render Section 2 of DOMA meaningless, and the Full Faith and Credit objection moot.
Finally, although I think the Obama administration should not have defended the Constitutionality of DOMA, I also think some recognition should be given that such exceedingly rare exceptions are not made lightly. One only has to turn the situation around to see the concern. Suppose, for example, that the current Democratic Congress were to pass sweeping civil rights measures, elevating sexual orientation to the status of race and gender with respect to employment, housing, and public accommodation. If a Republican administration came to power and decided not to defend those statutes, we liberals would be howling. And we would be just as angry, if not angrier, if this hypothetical administration adopted the middle ground that some have suggested the DOJ do here: write a half-assed brief not raising any arguments that might offend a core constituency. So while I disagree with Obama’s judgment, I think it’s a bit naïve to pretend it was an easy call to make.
I nonetheless agree with Joe Subay of Americablog (one of the "cynical lawyer-activists" I take issue with above) that “[f]or some, the decision whether to defend or oppose DOMA is purely a legal exercise. For many of us, it's our lives.” And it’s precisely this direct impact on the core of peoples’ lives--in a way that directly implicates rights I think the Constitution protects--that makes me disagree with Obama’s judgment call. That is the talking point the marriage equality movement should be pushing.