By William K. Black
Justice Scalia yearns the days when gays could be imprisoned for consensual, adult sex. His rage at the changes in the Nation and the Supreme Court on equality for same sex relationships and his impotence to stop those changes is palpable. Fortunately, while he demands that his colleagues be “anodyne” in their pronouncements and cease demonizing their critics he is immune to self-awareness and irony. As a result, we can count on him to display rudeness and condescension in heaping portions in oral argument and his opinions. His dissent in Windsor (which declared the portion of the Defense of Marriage Act (DOMA) dealing with federal recognition of lawful same sex marriages unconstitutional) is a derisive critique of the Court’s opinion. In this column I discuss his efforts to disguise DOMA’s “badge of inferiority” for gays and lawful same sex marriages. I explain the landmines he sought to avoid triggering on this point.
Scalia’s central problems on the merits of his efforts to defend DOMA are that there was no basis other than animus for DOMA forbidding federal recognition of same-sex marriages, DOMA made the marriages of same-sex couples wed under their state’s law inferior to other marriages in that State and among the states, and the poisoned chalice of one of the most infamous Supreme Court decisions, Plessy v Ferguson, 163 U.S. 537 (1896), which upheld racial segregation under the rationale of “separate but equal.” The Court upheld Louisiana’s law segregating rail cars against the claim that the law violated the equal protection clause. The two sentences from Justice Brown’s opinion for the Court that have haunted Supreme Court Justices of conscience for over a century read:
“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
Richard Kluger quotes this passage from Plessy in Simple Justice (1976) and then comments:
“Of all the words ever written in assessment of the Plessy opinion, none have been more withering than those … [of] Yale law professor Charles L. Black, Jr., who [said that in] … the two sentences… ‘The curves of callousness and stupidity intersect at their respective maxima.’”
I would add the curve of dishonesty to Charles Black’s list. The Plessy decision, the Court’s key betrayal of black Americans, produced a tsunami of segregation laws that established the Jim Crow system that denied blacks equality, safety, and dignity for over 50 years.
The states that discriminated against blacks never provided equal services to their black citizens, but the fiction provided a cover to the Court and eventually provided the excuse for the Court to overturn a few of the most obviously obscene pantomimes of equality. Scalia should have a more difficult problem defending DOMA. DOMA makes no pretense of providing a “separate” “equality” to same sex marriages. DOMA forbids the federal government from recognizing the existence of a same sex marriage that is lawful under the laws of the State. The purpose of the law is to deny equal federal recognition of legally valid same sex marriages. As the Court’s opinion striking down DOMA shows repeatedly through quotations, the purpose of DOMA was to have the federal government indicate that valid same sex marriages were not entitled to equal respect and recognition.
DOMA also had the effect, and its proponents worded assiduously to ensure it would have the effect, of disadvantaging couples that entered into lawful same sex marriages. It did so in ways that were calculated to be cruel, e.g., denying the ability to be married with one’s spouse in a veterans’ cemetery. A VA hospital that had a rule allowing spouses to stay overnight in the hospital room of a dying veteran to comfort the spouse in the hours before their death would be required by DOMA to exclude same sex spouses. DOMA also sought to harm same sex couples and their children financially, as was the case with the named plaintiff.
DOMA’s Eerie Parallels to Dred Scott and Plessy
Scalia’s task of claiming that DOMA had neither the purpose nor the effect of creating a “badge of inferiority” for lawful same sex marriages was made impossible by DOMA’s sponsors who intended precisely that effect, stated that they wanted the federal government to take the position that same sex marriages (and gays) were inferior, carefully drafted the law with the purpose and knowledge that its inherent effect was to create not simply a “badge of inferiority,” but a badge of non-existence. DOMA took its cue from Chief Justice Taney’s (pronounced “Tawny”) opinion for the Court in the Supreme Court’s most disgraceful decision, Dred Scott, 60 U.S. 393 (1857), which declared the Missouri Compromise unconstitutional as a restriction on slaveholder’s property rights.
Scalia’s dissent in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) emphasizes that the Court disgraced itself in these cases. “In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, 19 How. 393 (1857)….” In Dredd Scott, the Court explained how even freed blacks were permanent non-persons in the eyes of federal law.
“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa and sold them or held them in slavery for their own use, but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world.
The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such….”
Taney’s phrase about the status of blacks in the American colonies “no right which the white man was bound to respect” is the single most callous statement that the Court has made, but it was not a legal and factual error comparable to the Plessy’s callous, stupid, and dishonest statement about racial segregation laws no creating any “badge of inferiority.” Sadly, Taney was correct about the racist nature of American colonial law (though he downplayed the fact that most of the free States that fought the revolution and formed the Constitution allowed black males to vote and generally treated freed blacks as citizens for a some purposes). Seven of the nine Justices who decided Dred Scott were appointed by Southern, pro-slaver presidents and five of them, including Taney, came from slave-holding families.
What is often forgotten is that the examples of Colonial laws that Taney cited to support his claim primarily covered marriage, and they were models of debased cruelty and racial hatred.
“The province of Maryland, in 1717, ch. 13, s. 5, passed a law declaring
‘that if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court where such marriage so happens shall think fit, to be applied by them towards the support of a public school within the said county. And any white man or white woman who shall intermarry as aforesaid with any negro or mulatto, such white man or white woman shall become servants during the term of seven years, and shall be disposed of by the justices as aforesaid, and be applied to the uses aforesaid.’
The other colonial law to which we refer was passed by Massachusetts in 1705 (chap. 6). It is entitled ‘An act for the better preventing of a spurious and mixed issue,’ &c., and it provides, that
‘if any negro or mulatto shall presume to smite or strike any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at the discretion of the justices before whom the offender shall be convicted.’
‘that none of her Majesty’s English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person, duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her Majesty, for and towards the support of the Government within this province, and the other moiety to him or them that shall inform and sue for the same, in any of her Majesty’s courts of record within the province, by bill, plaint, or information.’
We give both of these laws in the words used by the respective legislative bodies because the language in which they are framed, as well as the provisions contained in them, show, too plainly to be misunderstood the degraded condition of this unhappy race. They were still in force when the Revolution began, and are a faithful index to the state of feeling towards the class of persons of whom they speak, and of the position they occupied throughout the thirteen colonies, in the eyes and thoughts of the men who framed the Declaration of Independence and established the State Constitutions and Governments. They show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma of the deepest degradation was fixed upon the whole race.”
DOMA, therefore, did not harken back to the “separate but equal” travesty of Plessy. DOMA was expressly designed to create “separate and unequal.” DOMA took its cue from a time when the Court ruled that the federal government could not under the Constitution recognize the concept of a free black citizen of the Nation even if a State treated a person of African descent as a free citizen of the State.
“The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether [blacks] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”
Taney’s approach in Dred Scott deeply unsettling parallels to DOMA.
“[W]e must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States.”
A free black person could be a “citizen” of a State that allowed black persons to be citizens, but such a free black person could never be a “citizen” of the United States of America. He could never sue in a federal court to vindicate his rights. As far as the federal government was concerned he had no federal rights. For federal purposes he was a non-person (though 3/5 enumerated for two purposes). If he visited another state whose state law allowed him to be made a slave he could be made a slave. He could not sue in either federal court or the state court of the slave state against his being enslaved. Blacks were eternal non-persons under Taney’s reasoning for purposes of federal law.
“In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.”
At federal law, DOMA provided that lawful same sex marriages no longer existed. Even their children could cease to exist within the contemplation of federal laws and regulations and be relegated to some Twilight Zone is which they could be discriminated against by the federal government with impunity.
DOMA: The Need to Defend Marriage from its Enemies – the Gays
DOMA’s horrific consignment of gays married couples and their children to the Twilight Zone does not capture the real purpose and depth of animus animating DOMA’s proponents adequately. Its very name, DOMA, is the dead giveaway. The official title of DOMA reads: “To define and protect the institution of marriage.”
The key proponents of DOMA were politicians who were serial adulterers, so the supposed effort to “defend traditional” marriage reeked of hypocrisy from the beginning.
The interrelated aspects of DOMA that are the most extraordinary are (1) implicitly defining gays as the enemy and (2) making the facially absurd claim that if the federal government does not discriminate against lawful same sex marriages “traditional heterosexual marriages” will be imperiled. Together, the claims are supposed to provide the rationale for DOMA’s wacky name – the Defense of Marriage Act. Given that (many) gays want the ability to marry and DOMA makes it harder for them to do so the Act is the Attack on Marriage Act.
The House Report asserts that same sex marriages supposedly represent an assault on “the institution of marriage,” “traditional heterosexual marriage,” “heterosexuality” and even the survival of our species (by imperiling reproduction). Gays are not simply disfavored – they are repeatedly described by DOMA’s proponents through military metaphors as posing a grave danger to our Nation. The House Report presents this as a deliberate, planned assault by “gay activists.” The House Report does not even make a pretense of demonstrating sympathy or empathy for gay Americans (or even their overwhelmingly heterosexual children). The faux claims to “hate the sin but love the sinner” are not in the House Report. Gays are immoral and sinful. They choose to be gay. Gay adults (and those who fail to condemn them as immoral) bear the guilt for causing “confus[ed]” children to choose to become gay. They bear this guilt because gays use the media to make our kids believe it is socially acceptable to be gay. To reverse this process we must demonstrate as a society that gays are not socially acceptable or normal, but are instead immoral and sinful. Gays are incapable of real marriages. Society should consciously prefer heterosexuals to gays. It should be lawful to discriminate against gays. The purpose and intended effect of DOMA is to discriminate against gays and to demonstrate societal disapproval of gays and lawful same sex marriages.
The House Report on the bill that became DOMA extends the military language to describe the bill’s motivations.
I. THE LEGAL CAMPAIGN FOR SAME-SEX `MARRIAGE’
Before discussing the Hawaiian lawsuit, the Committee believes it is important to place that development in its larger context. In particular, it is critical to understand the nature of the orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers. Only then can the Committee’s concerns that motivated H.R. 3396 be fully explained and understood.
“Gay rights groups” are the enemy. They are “assault[ing]” “traditional heterosexual marriage.” DOMA’s purpose is to “defend” “traditional heterosexual marriage” by defining same sex marriages as non-marriages. It is striking that Chief Justice Taney invoked the specter of the internal enemy in justifying the denial of rights of federal citizenship to free blacks.
“[I]t cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them” (emphasis added).
DOMA: Prompted by Fears of Hawaii’s Supreme Court
The House Report says that DOMA (enacted in 1996) was motivated by the fear that Hawaii’s courts were about to declare the ban on same sex marriage unconstitutional in the Baehr v. Lewin case. Notre Dame Law School Professor Gerard Bradley explained in his 2003 National Review article “Stand and Fight: Don’t Take Gay Marriage Lying Down” why he feared a trial by any judge on the validity of bans on same sex marriage.
Bradley is a leading strategist for the effort to ban same sex marriage. The fundamental problem for the anti-gay forces that prompted his article was the Supreme Court’s decision in Lawrence v. Texas (2003) declaring unconstitutional the state law making consensual adult sodomy a crime. The problem was the Court’s unwillingness to treat “traditional attitudes towards homosexuality” as legitimate bases for discriminating against gays. Bradley was writing to an audience that largely shared those “traditional attitudes towards homosexuality,” so he was unusually open about the nature of those attitudes
Justice Scalia is surely right that “many Americans do not want [openly gay] persons . . . as partners in their business, as scoutmasters for their children . . . or as boarders in their home.” Or as the newlyweds next door.
Bradley stressed that whether we describe these “traditional attitudes” as revulsion, discrimination, or homophobia they provide no rational basis for laws that discriminate against homosexuals.
Justice Scalia seems to say that the law limits marriage to one man and one woman because of society’s “moral disapprobation of homosexual conduct” (and says that the Court’s majority deems that motive unconstitutional). What would be the reasoned basis for that “disapprobation”? Feelings of repulsion won’t do, since feelings are not reasons at all.
Neither Scalia nor the House Report on DOMA recognizes Bradley’s key point. It isn’t enough to be revolted by an action or to consider it immoral. The issue is “what would be the reasoned basis for that ‘disapprobation?’” We are revolted by murder and consider it immoral – and we find it an easy task to provide a “reasoned basis” for our disgust and our view that it is immoral. Even ultra-orthodox Jews are not revolted by fabric blends in clothing and do no view such blends as “immoral.” They will not wear such blends because of the injunction in Leviticus 19:19. They do not have to be able to supply a “reasoned basis” for keeping such laws for their religion mandates that they keep such laws. Only a tiny percentage of Americans, however, keep that religious law (or any substantial part of Leviticus). We would consider it bizarre for a civil government to prohibit fabric blends or allow those who keep the law on religious grounds to be able to fire from our jobs because we wear fabric blends. What is the “reasoned basis” for prosecuting adult, consensual homosexual sex in the privacy of one’s home (or whipping a slave girl for having been raped (Leviticus 19:20)?
Scalia and the House Report do not attempt to provide such a reasoned basis. They provide no reasoned basis for why it is necessary to prohibit the federal recognition of lawful same sex marriages in order to convince straights to marry and have kids. Notice that this exposes a key logical flaw that DOMA’s proponents and Scalia exemplify. If it were really true that gays were horrific, immoral degenerates then it would be easy to provide a reasoned basis for forbidding them to marry. Assume for purposes of argumentation that it were really true that their “crime” was so vile that it “dared not speak its name” and was historically considered one of the worst crimes a man could commit. Roy Moore, the Chief Justice of the Alabama Supreme Court, issued a concurring opinion in a custody case Ex parte H.H. (In re: D.H. v. H.H.) (2002) that claimed that gays posed such a terrible danger that the State “must” use “the power of the sword” (“even execution”) to “prevent the subversion of children” by gays.
“The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle… Homosexual behavior is a ground for divorce, an act of sexual misconduct punishable as a crime in Alabama, a crime against nature, an inherent evil, and an act so heinous that it defies one’s ability to describe it.”
Assume that this historical consideration of the horrors gays unleash and Moore’s assertion that gays are out to “subvert[t]” our kids to become gays had a “reasoned basis.” It follows that having gays employed in general (and teaching young kids in particular), having gays serve in the armed services, allowing gays to adopt and serve as foster parents, and allowing gays to marry should have promptly produced such horrific results that it would have immediately caused wave after wave of scandal and the studies by sociologists would have documented terrible outcomes for children. If Scalia had DOMA’s proponents actually had a reasoned basis for their distaste for gays they could have, and would have, presented it.
The opponents of same sex marriage have no reasoned basis – which is why Bradley, their legal strategist, implores them never to try to provide such a basis in court where they would have to prove the existence of a reasoned basis for their discrimination. Bradley was warning them that a hearing in a court was their worst nightmare – they would document the terrible intensity of their antipathy for gays, but fail “disast[rously]” when they tried to provide a reasonable basis for their antipathy and the grand non sequitur of their principal assertion that same sex marriages harm straight marriages. They would embarrass themselves and their “experts” if they subjected them to cross-examination.
Bradley’s fears were born out by the Proposition 8 trial’s hearing. The factual hearing was such an embarrassing failure for the parties opposing same sex marriages and the homophobic animus of many of the leading proponents of Proposition 8 was made so clear that their leading expert “came out” (not as gay, but as apologetic for his testimony) after the ruling by the trial court that Proposition 8 was unconstitutional. David Blankenhorn renounced his support of Proposition 8.
Professor Bradley’s Rule: Never Try to Prove an Anti-Gay Position in a Court Hearing
Scalia’s dissents in Lawrence supported the central point that the Court made in Lawrence – the majority was discriminating against gays because it despised them and did not wish to associate with gays, a classic violation of the equal protection clause of the 14th Amendment. Bradley warned his readers that trying to prove to a court that there was a “rational basis” for discriminating against gays was a disastrous legal strategy.
Hawaii tried to prove in same-sex-marriage litigation several years ago that “gay” households handicapped kids — in strictly non-moral, mostly psychological ways — in school and in life. It was a disaster; even the state’s experts couldn’t show that it was so.
This is why opponents of homosexual marriage were desperate to avoid any trial in which they would be required to support their claims that such marriages would harm heterosexuals’ marriages. Note that the disasters that Bradley feared were not televised hearings or the harassment of experts testifying in opposition to homosexual marriage. The disaster he feared is any fair trial because it would expose the fact the attacks on gays and the bizarre claim that banning same sex marriages “defended” straight marriages were baseless.
Bradley also recognized the great danger posed by gays coming out of the closet. Gays were demonstrating that they were normal rather than demonic. The single most important reason that Americans, particularly Americans under the age of 50, have dramatically reduced their antipathy for gays is that far more gays are now openly gay. Americans increasingly recognize that they are colleagues, friends, and relatives of gays. Gays are no longer the despised “other” to many millions of Americans. Bradley warned that this normalization was the greatest threat to preserving discrimination against gays.
The clock is running out for another reason, too: Same-sex marriage is rapidly being normalized, culturally and legally. Many same-sex couples already consider themselves married, and expect to be treated as such. In many jurisdictions they are — more or less, depending on how many concessions the law has made to them on adoption, survivors’ benefits, and the like.
DOMA’s Proponents Avoid a Court Hearing, but Bungles the Rationale
The Congressional proponents of DOMA correctly anticipated the disastrous, embarrassing failure of the litigation efforts by the State of Hawaii to demonstrate that traditional marriage and children were threatened by same sex marriage. The mere prospect of having to prove in the Hawaiian courts that their claims that same sex marriage would harm “traditional heterosexual marriage” were valid sent shock waves through opponents of same sex marriage and prompted DOMA. The irony was rich – a federal legislative moat against same sex marriage was essential precisely because the opponents knew they could not demonstrate in any court that preventing same sex marriage had any relevance to “defending” “traditional heterosexual marriage.”
DOMA’s proponents claimed that it was essential to “defend” marriage by barring tens of millions of Americans the right to marry the man or woman they loved. The problem with a court hearing is that the State would actually have to prove that facially preposterous claim with admissible evidence from competent experts. As the Proposition 8 trial in California later demonstrated, this was impossible. The nice thing about a legislature is that there is no such requirement for proof or even logic.
The House Report then explained why same sex marriage was so awful.
“Upholding traditional morality, encouraging procreation in the context of families, encouraging heterosexuality—these and other important legitimate governmental purposes would be undermined by forcing another State to recognize same-sex unions. Second, in a more pragmatic sense, homosexual couples would presumably become eligible to receive a range of government marital benefits. For example, in Baehr v. Lewin, the court listed fourteen specific `rights and benefits’ that are available only to married couples. 852 P.2d at 59 (listing benefits relating to income tax; public assistance; community property; dower, courtesy, and inheritance; probate; child custody and support payments; spousal support; premarital agreements; name changes; nonsupport actions; post-divorce rights; evidentiary privileges; and others). The Committee would add that recognizing same-sex `marriages’ would almost certainly have implications on the ability of homosexuals to adopt children as well.”
DOMA’s proponents were all too clear in their explanations – and their inability to provide any logical and factual predicate for their claims. As Bradley conceded, their “feelings” against gays and in favor of straights (their first and third rationales) provide no rational basis for DOMA and instead demonstrate their desire to disfavor homosexuals and homosexuality. Same sex marriage “encourage[es] procreation in the context of families,” so the second rationale is irrational. The proponents’ goal is to deny a vast range of benefits to same sex couples and their children. The “necessary effect” of DOMA was inherently to harm same sex couples and their children, but the House Report is open that this discriminatory effect was known and planned by DOMA’s drafters. “[A] redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” DOMA was designed to deny same sex married couples and their children these “literally hundreds” of “federal rights and benefits” available to all other marriages.
The House Report then returns to its military metaphor to explain the basis for its rule.
V. THE GOVERNMENTAL INTERESTS ADVANCED BY H.R. 3396
“Of course, the foregoing discussion would hardly support—much less necessitate—congressional action if the Committee were supportive of (or even indifferent to) the notion of same-sex `marriage.’ But the Committee does not believe that passivity is an appropriate or responsible reaction to the orchestrated legal campaign by homosexual groups to redefine the institution of marriage through the judicial process. H.R. 3396 is a modest effort to combat that strategy.
In this section of the Report, the Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.”
The dastardly gays are seeking protection under the 14th amendment’s due process and equal protection clauses for the right to marry. Congress must “combat” their effort to achieve equality by denying equality because DOMA’s proponents oppose “the notion of same-sex ‘marriage.’” The four reasons the proponents claim provide a legitimate government interest for DOMA reprise the three I have discussed above and add “preserving scarce government resources.” Denying benefits to any disfavored group will “preserve scarce government resources,” so the fourth argument adds no support and instead demonstrates the desire to deny government resources to one form of lawful marriage because members of Congress oppose gays and same sex marriage and wish to “promote heterosexuality” and “traditional, heterosexual marriage.” Again, the proponents are openly indicating the desire to make same sex marriage inferior because they prefer heterosexuals and their marriages to homosexuals and their marriages. The fact that such brazen discrimination could get four approving votes in the Supreme Court tells us how exceptionally extreme those four jurists are and how hostile they are to protecting the rights of gays – and their (predominantly) straight children.
The House Report does not even attempt to demonstrate that same sex marriages harm heterosexual marriages. It simply labels same sex marriage “radical” and returns to its war metaphors: “But the fact that marriage is embattled is surely no argument for opening a new front in the war.”
The House Report stresses the link among its purported “bases” for barring federal recognition of same sex marriages.
“Closely related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality. While there is controversy concerning how sexual `orientation’ is determined, `there is good reason to think that a very substantial number of people are born with the potential to live either gay or straight lives.’ E.L. Pattullo, `Straight Talk About Gays,’ Commentary 21 (December 1992). `[R]eason suggest[s] that we guard against doing anything which might mislead wavering children into perceiving society as indifferent to the sexual orientation they develop.’ Id. At 22; see also Bennett, The Washington Post A19 (May 21, 1996) (`Societal indifference about heterosexuality and homosexuality would cause a lot of confusion.’); Deneen L. Brown, `Teens Ponder: Gay, Bi, Straight? Social Climate Fosters Openness, Experimentation,’ The Washington Post A1 (July 15, 1993) (recounting interviews with dozens of teenagers, school counselors, and parents regarding increased `sexual identity confusion’ apparently reflecting increasing social acceptance of homosexuality). Maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality, for as Dr. Pattullo notes, `to the extent that society has an interest both in reproducing itself and in strengthening the institution of the family . . . there is warrant for resisting the movement to abolish all societal distinctions between homosexual and heterosexual.’ Pattullo, Commentary at 23.]
The stated (Orwellian) goal is “maintaining a preferred societal status of heterosexual marriage” in order to reduce the number of homosexuals because DOMA’s proponents wish to “promot[e] heterosexuality.” Naturally, this is supposed to save our “wavering children.” Society must not be “indifferen[t]” to homosexuality lest the number of homosexuals increase because of declining societal condemnation of homosexuality. These claims, of course, if carried to their logical conclusion would call for increasing “societal distinctions” by demeaning and jailing gays to demonstrate the intensity of the societal condemnation (rather than “social acceptance”) of gays. That would have the salutary effect of keeping gays in the closet, which would further protect our “confus[ed]” kids from becoming gay.
Scalia tried, during oral argument on the DOMA case, to claim (incorrectly) that there is not scientific consensus on the lack of harm to straight marriages of same sex marriages. What is noteworthy is how little he cites anything from the House Report on DOMA. He recognizes that the portion of the House Report that attempts to provide a secular rationale for DOMA it is a travesty that greatly aided the challengers.
The House Report promptly descends further when it makes clear that religion is the key.
B. H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY
There are, then, significant practical reasons why government affords preferential status to the institution of heterosexual marriage. These reasons—procreation and child-rearing—are in accord with nature and hence have a moral component. But they are not—or at least are not necessarily—moral or religious in nature.
But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect. Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, 54 and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. As Representative Henry Hyde, the Chairman of the Judiciary Committee, stated during the Subcommittee markup of H.R. 3396: `[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate. . . . And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.’
[Footnote 54: See, e.g., Bowers v. Hardwick 478 U.S. 186, 196 (1986) (rejecting constitutional challenge to Georgia law criminalizing homosexual sodomy and holding that the law served the rational purpose of embodying `the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.’); `The Homosexual Movement; A Response by the Ramsey Colloquium,’ First Things 15 (March 1994) (noting that `the Jewish and Christian traditions have, in a clear and sustained manner, judged homosexual behavior to be morally wrong.’).]
The Supreme Court overturned Bowers in their decision in Lawrence. As Bradley stressed, such feelings of animus towards a group – defining them as “immoral” when they have adult, consensual sex in the privacy of their homes – is a “feeling” that cannot establish a rational basis for a law disfavoring the despised group. By the time the Supreme Court decided the challenge to DOMA Scalia knew that his claims that legislators can ban anything they label “immoral” would not persuade any of the five justices that might strike down DOMA.
By the time DOMA was decided its proponents had been proven incorrect in their predictions about public support for same sex marriage.
“[I]t is hard to imagine a scheme of same-sex marriage voted in by the public in a referendum. These things must be imposed by the courts, if they are to be imposed at all….”
Indeed, the situation had reversed, with DOMA used to impede the will of the public and their democratically elected representatives in states with tens of millions of citizens.
By the end of the House Report’s efforts to provide a rationale for barring federal recognition to lawful same sex marriages the proponents were reduced to asserting:
“If Hawaii (or some other State) were to permit homosexuals to `marry,’ these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual `marriages’ on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex `marriages’ will thus preserve scarce government resources, surely a legitimate government purpose.”
Yes, proof through adding the word “surely” is surely proof that denying benefits to a disfavored group is “legitimate” because it saves money. DOMA’s proponents always put “marriage” in quotation marks when they referred to same sex marriages to demonstrate their view that there was no such thing as same sex marriage. The House Report repeatedly demonstrates disdain for gays and same sex marriages and families – even in small things.
The Supreme Court issued its decision in Romer v. Evans, 517 U.S. 620 (1996) while DOMA’s proponents were attempting to craft a legitimate basis for the bill. The Court held unconstitutional an amendment to the Colorado constitution that forbade state and local laws protecting gays from discrimination.
DOMA’s proponents recognized the danger that the Romer decision posed to DOMA’s constitutionality for they quoted the key passage in the House Report: “Indeed, the Court said, Amendment 2 was so unrelated to this rationale as to `raise the inevitable inference’ that it was `born of animosity’ toward homosexuals.” DOMA was particularly vulnerable to being declared unconstitutional under Romer’s logic because the House Report was replete with “animosity toward homosexuals” and because the name and provisions of the bill “defense of marriage” were “unrelated to” DOMA’s “rationale.” Rather than rethink the bill or its stated rationales, the House Report decided to attack the Romer decision as erroneous. The House Report characterization of Colorado’s Amendment 2 is that it “would have prohibited the State or any of its political subdivisions from granting homosexuals protected class status or any form of preferential treatment.” That characterization is inaccurate and Orwellian. The group being discriminated against is then singled out and denounced for getting “preferential” treatment if it has any legal redress against that discrimination (which others do not suffer).
Amendment 2 was promoted in response to the adoption of laws in several Colorado cities prohibiting discrimination against gays. Amendment 2 was declared unconstitutional by Colorado’s Supreme Court. Governor Romer opposed the amendment but defended its constitutionality because he felt it was his duty to do so. The U.S. Supreme Court affirmed in a 6-3 decision authored by Justice Kennedy.
“Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class [homosexuals]. The amendment reads:
‘No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.’”
The Amendment banned laws and policies preventing discrimination against gays. Justice Scalia’s dissent in Romer began with his claim that:
“The Court has mistaken a Kulturkampf for a fit of spite.
The constitutional amendment before us here is not the manifestation of a ‘bare . . . desire to harm’ homosexuals, ante, at 634, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”
Scalia’s view is that gays are immoral and that governments, businesses, and individuals should be free to discriminate against them with impunity from the laws. Indeed, Scalia’s logic is that they should discriminate against gays and that the States should imprison gays. (He is sad that it is hard to prosecute gays because “‘police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution.’”
Scalia’s dissent in Romer argues that it is fine to discriminate even against people with a homosexual orientation who do not engage in sex. Bowers provided his rationale – because it is constitutionally permissible to prosecute gays even for consensual adult sex in the privacy of their homes it must be constitutional to discriminate against them in any facet of life. Scalia’s basis for viewing Coloradans tolerant about gays is that they no longer prosecuted them for having consensual adult sex in private. Scalia identified the real problem – gays cluster in certain cities and use their greater than average income to cultivate political power and seek to pass laws banning discrimination against gays. That use of political power by a “powerful minority” offends those who want to discriminate against gays. Scalia understood that Romer meant that Bowers was indefensible and that Justice Kennedy might be able to get the votes to overturn Bowers. Scalia knew that without Bowers the rationale for society’s oppression of gays was logically untenable. Scalia’s rage has mounted steadily since the Romer decision.
The House Report shares both of Scalia’s central views about how terrible the Romer decision is. First, it suggests that there is something wrong with discriminating against gays.
“It is difficult to fathom how, applying this standard, the Court majority concluded that Amendment 2 is unconstitutional. As even the majority recognized, Amendment 2 was motivated by the enactment in several Colorado municipalities (and several agencies at the State level) of laws or policies outlawing discrimination against homosexuals. As a result of those laws, Colorado citizens who have moral, religious, or other objections to homosexuality could be forced to employ, rent an apartment to, or otherwise associate with homosexuals. It is most assuredly `conceivable’ that Amendment 2 would advance the State’s interest in protecting the associational freedom of such persons. And as the freedom of association is a constitutionally protected right, it is self-evident that protecting that freedom is a legitimate government purpose. On this ground alone, it is inconceivable how Amendment 2 could fail to meet the rational basis test.”
My God, straights might have to “associate” with gays in the commerce rather than being free to discriminate against gays as God intended. (Of course, straights have been associating with closeted gays for all of American history in commerce without any ill effect.) Anyone that has a religious belief that a group is inferior, unclean, or immoral has a “constitutionally protected right” that is “self-evident” to discriminate against that group in commercial matters. Recall as you apply the House test for acceptable discrimination that some religious leaders have taken to openly saying it would be a violation of their faith for members of their congregation to vote for Democrats.
Second, the House Report is enraged that Bowers did not lead the Court to uphold Amendment 2. If you can constitutionally throw them in prison because their gay you can constitutionally make their life a living hell through discrimination against gays in any facet of life.
What makes Romer even more unsettling is the Court’s failure to distinguish or even to mention its prior opinion in Bowers v. Hardwick. In Bowers, of course, the Court only ten years earlier held that there was no constitutional objection to a Georgia law criminalizing homosexual sodomy. Bowers would seem to be particularly relevant to the issues raised in Romer, for in the earlier case, the Court expressly held that the anti-sodomy law served the rational purpose of expressing `the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.’ If (as in Bowers) moral objections to homosexuality can justify laws criminalizing homosexual behavior, then surely such moral sentiments provide a rational basis for choosing not to grant homosexuals preferred status as a protected class under antidiscrimination laws.
Note the reappearance of “surely” – a sure sign that the proponents of DOMA knew their bill was at risk under Romer of being found unconstitutional.
Consider also Bowers’ holding that it is “unacceptable” to be a homosexual in Georgia – and the fact that the Supreme Court was fine with that. The Court thought it was fine for gays in Georgia to have two choices – life-long celibacy or a furtive, in-the-closet life in which every act of sexual intimacy carries with it the risk of being imprisoned and shamed. Did Scalia or the proponents of DOMA ever muster enough empathy to think even for thirty seconds what it would mean for the government to declare a citizen “unacceptable?” What Scalia and DOMA’s proponents loved about Bowers was that it made it perpetually “open season” on gays who dared to come out of the closet. The public-private partnership of animus towards gays could then be brought to bear on anyone brave, incautious, or unlucky enough to be identified as gay.
The House Report concluded with a vain hope that demonstrated its animus in the course of trying to deny it.
“It would be incomprehensible for any court to conclude that traditional marriage laws are (as the Supreme Court concluded regarding Amendment 2) motivated by animus toward homosexuals. Rather, they have been the unbroken rule and tradition in this (and other) countries primarily because they are conducive to the objectives of procreation and responsible child-rearing.”
The reality, as the House Report had just demonstrated in roughly 30 pages drenched in animus against gays, is that bias against gays has been one of the most common and widespread forms of bias. The fact that marriage can aid “the objectives of procreation and responsible child-rearing” provides no rational basis for DOMA. DOMA is based on the giant lie that allowing same sex couples to marry harms the ability of straight couples to marry, have sex, produce children, and raise children. The House Report, of course, presents no evidence supporting such a facially ridiculous position. The entire “defense” aspect of DOMA is a fiction. The House Report is also knowingly disingenuous in implicitly claiming that we have ever limited marriage to those who are capable and desirous of having children. No State has ever required proof (or even assurances) that the couple applying for a marriage license is capable and desirous of creating a child. We have a vast apparatus of fertility clinics that help hundreds of thousands of straight and same sex couples produce children, even when those children are not biologically related to one of the parents. We also have substantial numbers of adoptions and we treat those that adopt as “parents” and honor them for adopting – except in States that seek to dishonor gays who wish to adopt.
Scalia’s Disingenuous Dissent about DOMA
Scalia complains bitterly that the Court’s opinion read what DOMA’s proponents wrote and cited it.
“[The Court’s opinion] says that the motivation for DOMA was to ‘demean,’ ibid.; to ‘impose inequality,’ ante, at 22; to ‘impose . . . a stigma,’ ante, at 21; to deny people ‘equal dignity,’ ibid.; to brand gay people as ‘unworthy,’ ante, at 23; and to ‘humiliat[e]’ their children, ibid. (emphasis added).
Here is the actual wording of the Court’s opinion.
“What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional….(slip op: 25).
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages” (slip op: 25-26).
Notice that Scalia has left out the key phrases “and the necessary effect” in the first paragraph that I quoted and “and effect” in the second paragraph. He cites only the “purpose” portion of a phrase that the Court’s opinion uses repeatedly to emphasize that the issue is not only DOMA’s purpose but also its necessary effect. Scalia then purports:
“I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race (Scalia, p. 21).”
Regular readers will know of our family rule that it is impossible to compete with unintentional self-parody. Scalia provides another proof of that rule. It is Scalia and DOMA’s proponents who tried to create a phony “moral panic” about a fictional “assault” by “gay activists” on “traditional heterosexual marriage.” It is Scalia and DOMA’s (and Proposition 8 supporters) who insist on using military metaphors that make gays the enemy and Scalia and his supporters the “defenders” of “traditional heterosexual marriage.” Gays are happy to have heterosexual couples marry and procreate. It is the opponents of same sex marriage in California who claimed that this fictional assault posed an existential threat to humans that could lead to our extinction. It is Scalia, many of the proponents of DOMA and Proposition 8, and judges such as Roy Moore, the Chief Justice of the Alabama Supreme Court, who have tried to picture gays as the depraved enemies of the human race. After being removed from that Court in disgrace, the voters returned Moore as Chief Justice. He ran on a platform that included the claim that “same-sex marriage will lead to the ultimate destruction of our country.”
At least a dozen religious leaders (and Judge Moore) have claimed that God has become a deliberate mass murderer of innocents (through natural disasters) because God is enraged that we do not imprison gays. Hundreds of thousands of Americans are bullied every day because they are gay or because someone thinks they are gay. Hundreds, perhaps thousands, of Americans are assaulted annually for the same reasons. It is Scalia and those he supports who literally demonize gays and literally claim that they are the “enemies of the human race.”
Supporters of heterosexuals getting married and procreating face no opposition from gays (or any organized group). The heterosexual couples they are encouraging to marry may tell them to butt out of their personal lives, but that is the only opposition they will receive to encouraging heterosexual couples to marry. But that is not what DOMA’s supporters did. The designed a law to forbid the federal government from recognizing same sex marriages and they did so with the intent, and knowing and desired result, that such a law would disfavor same sex couples and their families. To hurt millions of fellow citizens when it produces no gain to heterosexual couples (and, had DOMA not been struck down) would eventually have harmed millions of heterosexual children of same sex couples is irrational, mean-spirited, and callous. Note that Scalia could not find any statement from the House Report evincing even formulistic empathy for gay citizens.
The House Report shows that they designed the law to demonstrate and produce advantages for married heterosexual couples and their families while denying those benefits to same sex married couples and their families. The Report states their explicit goal was to demonstrate their view that society should favor heterosexuals over homosexuals.
Scalia compounds the errors in his presentation of the Court’s findings about the “purpose and necessary effect” of DOMA by supplying an inaccurate presentation of what he claims DOMA did. Scalia claims that it was “an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence….” That characterization is unworthy of Scalia. He knows, because DOMA’s proponents spelled it out, that they acted because of their fears that Hawaii would allow same sex marriages. To try to discourage that result and discourage any other state from emulating Hawaii, DOMA was designed to forbid the federal government from recognizing same sex marriage. DOMA was designed, and had the “necessary effect” of denying federal benefits to lawfully-married same sex couples and their children.
Part of what is going on in these passages from Scalia’s dissent is that he is trying to avoid triggering the Plessy landmines that would explode were he to discuss DOMA’s “necessary effect” on lawfully-married same sex couples and their children. DOMA’s proponents made clear in the House Report their desire to actually disfavor such couples and their children by denying them federal benefits and their desire to send a signal to the public and children that the federal government disfavored such couples and their children. They wanted gay couples and their children to know that the federal government did like some lawfully-married couples (heterosexuals) and their families better.
Scalia’s dissent never addresses the merits of examining the “necessary effect” of DOMA on lawfully-married same sex couples and their children. It would have been impossible for him to deny that the necessary effect of denying federal benefits would be to harm those couples and families and made them second-class marriages. It would have been impossible for him to deny that the proponents knew that these things were the “necessary effect” of DOMA. It would have been impossible for him to deny that the proponents intended both negative effects because the proponents said this was what they wished to accomplish. The great trap would have been for Scalia to start down the road of trying to explain why DOMA did not make lawful same sex marriages and families second-class. Any explanation would have ultimately had to be that they would only be second class marriages if homosexual couples viewed them as second class. Without the fig leaf provided to the Court in Plessy, Scalia’s effort to present such an explanation would inherently require him to reprise the callous, stupid, and dishonest claim that gays caused their own problems by perceiving their marriages as second class. He would probably make an “inherently separate and unequal” claim that they held that perception because they knew they couldn’t act as a couple to conceive children. Invoking any argument akin to Plessy would have unleashed a torrent of criticism of Scalia that would embarrass his allies on the Court. Scalia is a troll, but Chief Justice Roberts is part politician and has an eye on the history books. He would be distressed tactically if Scalia had pulled a Plessy.
If Justice Kennedy had separated his arguments about “purpose” from “necessary effect” (and then integrated him by making the point that DOMA’s proponents were aware of the necessary effect of their actions) he might have drawn Justice Scalia out into responding to the “necessary effect” argument. That would have proven harmful to Scalia. If Scalia had failed to respond to the separate “necessary effect” section of the Court’s opinion Kennedy could have “claimed his winners” by noting Scalia’s failure to respond. By putting the two terms together with the conjunctive “and” (rather than “or”), Kennedy made it easy for Scalia to duck the trap by responding only to Kennedy’s statements about “purpose” and ignoring the “necessary effect.”