Llye Denniston with SCOTUSblog notes that the new brief filed by GOP lawmakers points out how gay and lesbians can hardly be considered politically powerless:
Arguing that the federal government has the same power as state governments do to define marriage, the Republican members of the House of Representatives’ leadership told the Supreme Court on Tuesday that the 1996 Defense of Marriage Act does not attempt to exclude anyone from government benefits but seeks only to define what marriage means under federal laws and programs. It means, as the Act says, that marriage for all federal purposes is a union between one man and one woman.
... The brief made a strenuous argument against raising the constitutional standard for judging laws that treat gays and lesbians less favorably. The GOP brief contended that those individuals do not need such protection. “Gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characterizing such a group as politically powerless would be wholly inconsistent with this Court’s admonition that a class should not be regarded as suspect when the group has some ‘ability to attract the attention of lawmakers.’”
Both President Obama and Attorney General Eric Holder, the brief noted, have decided to “stop defending and start attacking DOMA itself,” and those developments show “the remarkable political clout of the same-sex marriage movement.”
10 Comments
The GOP brief claims that the Defense of Marriage Act does not attempt to exclude anyone from government benefits. And yet that's exactly what DOMA does. Legally married Straight couples are automatically bequeathed a huge variety of government benefits, much of them having to do with tax law and Social Security. Legally married Gay couples are EXCLUDED from those benefits. The Supreme Court will determine that this violates the 14th Amendment guarantee of equal protection under the law.
Marriage law, even when it is redefined to include same sex marriage, excludes singles from benefits. If the constitutional or moral object is to have benefits for everyone, we need to make all benefits universal for all adults. For example, single people cannot designate their social security benefits for another person, even though they can bequeath property and life insurance benefits. Singles are EXCLUDED from that benefit. Why shouldn’t the Supreme Court determine that this violates the 14th Amendment guarantee of equal protection under the law?
The Supreme Court is unlikely to so hold. Singles are not as powerful a political group as gays.
The legal case for overturning DOMA rests on a number of fictions, one of which is that gays and lesbians are politically powerless. Another fiction is that legal definitions in one state must trump federal legal definitions and the definitions of other states.
And the outrageous demand is that the people of California cannot have a say in upholding the time-honored definition of marriage, even when their own state supreme court says they can.
Publius, please drop the "singles" angle. You keep toting it, and it does nothing but make traditional marriage supporters look like idiots. We're disadvantaged enough as it is; give it a rest already.
The DOMA legal case is full of contradictions as well, when heard alongside Prop 8. Supposedly, the federal government having a certain definition of marriage interferes with the right of states to determine the course of their family laws, but the state of California is not allowed to determine the course of its family laws!
@peter, please drop the "I'm a traditional marriage supporter" angle. It does nothing but make you look like an idiot. Any regular reader of this blog knows the deal. Try using another name if you plan to come here pretending to be a NOM supporter. Thanks.
Peter,
Why is allowing a single person to designate a beneficiary for their social security benefits idiotic? Please explain that. I am trying to make people think, and your comment doesn't do anything but attempt to shut down thinking and discussion.
Fine. Look like fools.
This is a very technical defense of the law. It seems BLAG is almost conceding on the broader constitutional issues.
Peter,
You were unwilling or unable to answer the question I posed, which would lead to the question of what is marriage (and what therefore does it mean to be single) and why does the state sanction marriage.
Your argumentation so far amounts to name calling. The SCOTUS would not be impressed.
Publius, your comments provide an excellent provocation to think.
The lone individual is a one-sex scenario. If he is gay is that unjust discrimination on the basis of gayness?
What makes the onesome so much less worthy than the twosome? And what makes the threesome or moresome less worthy than the gay twosome? One might as well assume that the threesome and moresome are comprised of gay-only participants.
The provision for designated beneficiaries exists across the country but it could be uniformed through the usual state-by-state process of writing statutory law with some degree of coordination.
Publius' comment focuses on designating social security benefits, which is precisely what SSMers have been highlighting. They just rely on a gay emphasis. But why would they treat the other one-sexed scenarios as less worthy of that for which they demand society grant to the gay subset of the one-sexed scenario? They demand it based on gayness but why is that decisive rather than the deeper purpose of designating benificiaries?
Now, sure, I can think of reasons to show preference for the marital relationship -- the union of husband and wife -- but that has zilch to do with gayness and everything to do with marriage.
Chairm,
Thank you for your thoughtful analysis.
Robert Anderson (http://www.nomblog.com/32670/) gets it.
"...Being created equal doesn’t entail or require redefining marriage. Every marriage policy draws lines, leaving out some types of relationships. But equality forbids arbitrary line-drawing. Determining which lines are arbitrary requires us to answer two questions:
1) What is marriage?
2) Why does it matter for policy?”
Noah Webster understood this when he wrote that marriage “was instituted … for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children.”