Saturday, December 17, 2011

Uncomfortable Questions for the DOMA Defenders.


There are numerous court cases that are investigating the legality of the sort of discriminatory policies which where imposed by the Defense of Marriage Act.  The Republican congress passed a measure to spend millions of taxpayer’s dollars in order to defend this intrusive regulation. They even created a misnamed  Bipartisan Legal Advisory Group to handle defending the undefendable.

 One of the cases winding its way through the coursts is Golinski v. U.S. Office of Personnel Management. The court that will be hearing the case has asked BLAG and attorneys for Golinski to address numerous questions in a hearing scheduled for December 16. These are all good questions and we are reprinting them here, though in shorter format geared for non-legal audiences. These questions get to the heart of DOMA and why it was such a radical assault on the traditional separation of powers between the states and the federal government. I shall be curious to see how the Republicans answer these question and what mental gymnastics will be required for them to justify this unprecedented attack on the federalist principles that apply to marriage laws.


1.     Section 3 of DOMA “marks a unique department from the recognition the federal government historically has afforded to State marital status determinations.” So, “is there any authority for the Court to subject the statue to a more rigorous constitutional scrutiny, and “are there any historical examples in which Congress legislated on behalf of the federal government in the are of domestic relations?”
2.     Why shouldn’t the Court subject DOMA to heightened scrutiny “for impacting marriage as a basic fundamental freedom and an exercise of personal decision-making?
3.     Why does BLAG argue “that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?
4.     Given that religious affiliation is treated as a suspect class and subject to heightened scrutiny how does BLAG “distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?
5.     What authority does BLAG have? “Is this group actually bipartisan? Does BLAG have the support—and funding for the increasing cost of defending DOMA—from a majority of Congress or just from the House of Representatives? (Oh, I know the answer to that one. It’s only the Republican controlled House that voted to spend the money.)
6.     How does BLAG argue that DOMA can pass heightened scrutiny when other coursts have found “that DOMA does not pass constitutional muster under even rational basis scrutiny?”
7.     What is BLAG’s basis for upholding DOMA?
a.     BLAG says it provides consistency but “for the first time federal officials are now tasked with determining the validity” of some legal marriages but not others. “How does treating some state sanctioned marriages different from others promote consistency or maintain the status quo?”
b.      “Does BLAG have any authority for the proposition that codification of a long-standing tradition independently constitutes a rational basis?”
c.      How does BLAG’s arguments differ from the claim that laws against interracial marriage were traditional as well?
d.     “How does the withholding of federal benefits to children of families with same-sex parents encourage responsible parenting and child rearing?”

8.     “[H]ow are heterosexual lawfully married persons affected by the sharing of benefits with lawfully married homosexual persons?


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