17 June 2009

Laurence Tribe: "Calm the fuck down, anti-DOMA people"

So DoJ filed a brief in the 9th Circuit urging that Smelt v. United States be dismissed, and anti-DOMA activists are upset at this perceived betrayal by the Obama Administration. But Laurence Tribe figures that it's not that President Obama wants DOMA to stand. Rather, he sees DoJ's move as strategic: Obama doesn't want DOMA to go to the Supreme Court on this case, because the plaintiffs aren't nearly as well situated legally as the ones in Massachusetts:
A strategic Justice Department interested in a litigation strategy that has some realistic chance of success certainly would not have taken [the Smelt] case as the one in which the constitutional vulnerabilities of DOMA should be explored.
Bad cases make bad law, people. No matter how strongly you oppose DOMA, you really, really don't want the Supreme Court to get their hands on Smelt.

Comments making puns about fish are not only welcomed, but encouraged.

Anyway, here's an interesting paragraph from the brief:
When States began to consider adopting historically novel forms of marriage, Congress took a wait-and-see approach. It codified, for purposes of federal benefits, a definition of marriage that all fifty states had adopted (i.e., that between a man and a woman) and continued to accord financial and other benefits on the basis of that historical definition. At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.
Does that sound to you as if the Obama Administration is saying, "Dear Congress, please repeal or amend DOMA, and I'll be more than happy to sign a new federal definition of marriage into law"? 'Cause that's the vibe I'm getting from that paragraph, myself.

Here's some bad news for the plaintiffs, if it's true (I haven't read the complaint, though):
Plaintiffs fail to allege that they have ever applied for any federal benefits that are available on the basis of married status -- let alone that they have been denied any as a result of DOMA.
D'oh! No harm, no standing! No standing, no jurisdiction! So kick it out of court without even addressing the merits, which would be great for the President.

You should feel free to download the brief and read all 54 pages for yourself, because I'm going to do only a short wrap-up of it right now.

The plaintiffs are arguing equal protection. When you make an equal protection argument, you're saying that Congress has passed a law that identifies a certain class of people and treats those people differently from other people, and that the way the law does it is not allowed under the Constitution. Congress has to articulate a really, really good reason for the discrimination, and the law has to be very closely drawn to address Congress's articulated reason. And if the law involves a fundamental right (e.g., privacy, raising and educating your children, free speech), then the law is almost certainly unconstitutional. In the context of this case, for plaintiffs to have DOMA declared unconstitutional, they need to get the Supreme Court to agree with their view that same-sex marriage is a fundamental right.

Now, I agree with that view, and you agree with that view. But right now, the Supreme Court doesn't agree with that view. So if Smelt gets there, even with Judge Sotomayor on the bench, the risk is that the Supreme Court will affirmatively declare no fundamental right for same-sex people to marry. Then DOMA will go away only through Congressional action; states with constitutions that will allow it will be able, under the U.S. Constitution, to enact restrictions on same-sex marriage, and feel welcome to do it; and progress toward recognition of same-sex marriages and full equality for gay people throughout the country will be set back for years, if not decades. I think it would even open the door to reviving the Federal Marriage Amendment. Jesus christ on a pogo stick, people.

So I agree with Professor Tribe's view. Let Smelt get dismissed with prejudice, and let's find a better case and wait for a better bench.


upyernoz said...

just because smelt isn't the best test case doesn't mean that they had to compare gay marriage to incest or marrying children. maybe you and tribe are right about the overall litigation strategy, but they simply didn't have to go there in the brief.

Glomarization said...

This is the kind of thing that happens when people like Rick Santorum are allowed to set the discourse.