an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The recent debates on SCOTUSblog about the same-sex marriage issue are remarkable for how little has been said on the substantive merits of the challenge to the Defense of Marriage Act (DOMA). I predicted that the Supreme Court would strike it down, and said that the Court would be right to do so. To my enormous surprise, those claims have gone unchallenged. Instead, William Duncan and John Eastman complain that the marriage suits are collusive; that they have not been properly defended, casting doubt on the legitimacy of the result.
I only wrote about the DOMA suit, so I’ll confine my attention there. Duncan claims that Attorney General Holder tried to throw the case. But Holder announced the decision to stop defending DOMA in a letter to John Boehner, who Holder knew would retain outside counsel.
The case is in fact being vigorously litigated by Paul Clement on Boehner’s behalf. DOMA’s real problem is not that it isn’t being defended, but that it is indefensible. Consider, for example, one truly terrible argument that Clement has just filed: the claim that Congress excluded same-sex couples from every single federal benefit in order to “provide for consistency in eligibility for federal benefits based on marital status.” Clement is a fine lawyer. If this is the best he can come up with, then the case for DOMA is desperate.
In his motion to dismiss in Pedersen v. Office of Personnel Management, filed Aug. 15, Clement writes (p. 40): “If same-sex couples were eligible for federal marriage benefits, some same-sex couples would be eligible and some would not depending on the vagaries of state law. A same-sex couple living in a same-sex marriage state could marry and become eligible for federal benefits, whereas a couple residing in a non-same-sex marriage state could not do so in their home state.” In order to “avoid arbitrariness and inconsistency in such eligibility,” Congress could reasonably exclude same-sex couples. The brief quotes then-Senator John Ashcroft, speaking on behalf of DOMA: “unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently;” and “people in different States would have different eligibility to receive Federal benefits, which would be inappropriate.”
States, however, have had different criteria for who can marry since the founding of the United States. Different criteria for the age of marriage, different rules about when and which cousins could marry, and many other restrictions. Clement and Ashcroft both seem ignorant of this basic fact about American family law. Both seem to think there were no differences among state laws until same-sex marriage came along. Not only is the problem DOMA purports to solve more than 200 years old. DOMA doesn’t even solve it, except by beating up on same-sex couples.
Clement is the former Solicitor General of the United States, has argued 49 cases before the Supreme Court, now teaches at Georgetown and NYU, and his credentials are, in a word, fabulous. If this is the best he can come up with, that is powerful evidence that the statute can’t be defended with a straight face. I am confident that Clement is not colluding with the statute’s opponents.