Our friend Dale Carpenter along with several other libertarian-leaning, nonleftist law professors filed an exemplary brief arguing that DOMA is unconstitutional under federalism principles:
Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis. Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power. It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers. Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.
An array of briefs have now been filed from left-progressive to libertarian and center-right. That’s laudable. But let’s recall how the libertarian Cato Institute’s amicus brief in Lawrence v. Texas was the one that Justice Kennedy cited in his opinion overturning state sodomy laws (note: he didn’t cite the briefs from NGLTF or HRC).
As in Lawrence, Justice Kennedy (and perhaps, now, even Alito and Roberts) aren’t going to be swayed by the bigger-government, Democratic party-aligned progressives. But it’s still good to have them onboard.
More. Here is analysis that includes a link to the Cato Institute’s brief in favor of marriage equality.
Furthermore. James Kirchick writes:
At the time of the Stonewall Riots in 1969, few would have predicted that a movement predicated upon sexual liberation would mature into one calling for the right to get married and serve openly in the armed forces.
Some liberal gay activists, suffering from a bout of historical amnesia, do not like what they see as an attempt by conservatives (gay and straight) to claim the cause of marriage equality as their own.
Still more. Not a constitutional argument, but a powerful video ad from Republicans United for Freedom.
14 Comments for “Making the Case”
posted by Tom Scharbach on
As in Lawrence, Justice Kennedy (and perhaps, now, even Alito and Roberts) aren’t going to be swayed by the bigger-government, Democratic party-aligned progressives.
Stephen, are you suggesting that Justice Kennedy relies on ad hominem reasoning in rendering his decisions? It would seem so.
Nothing in Justice Kennedy’s record suggests that he would reject a legal argument with which he agreed because it was made by a person or group with which is disagreed on other matters.
The reserved/enumerated powers powers argument is central to the constitutionality of Section 3 of DOMA. The argument is made by all of the major briefs, including the brief filed by the Solicitor General. If you are right about Justice Kennedy, let’s hope that he doesn’t read any of the briefs filed by “the bigger-government, Democratic party-aligned progressives.”
But let’s recall how the libertarian Cato Institute’s amicus brief in Lawrence v. Texas was the one that Justice Kennedy cited in his opinion overturning state sodomy laws (note: he didn’t cite the briefs from NGLTF or HRC).
Justice Kennedy cited the Cato Amicus Curie brief twice in his opinion, the ACLU Amicus Curie brief three times, Mary Robinson, et. al Amici Curie brief once, and Professors of History et al. Amici Curiae brief once, and numerous law review commentaries, books and articles, all to support his argument. The oft-ballyhooed suggestion that Cato’s brief was determinative is a Libertarian conceit.
posted by Tom Scharbach on
Formatting correction:
The last paragraph should read “Justice Kennedy cited the Cato Amicus Curie brief twice in his opinion, the ACLU Amicus Curie brief three times, Mary Robinson, et. al Amici Curie brief once, and Professors of History et al. Amici Curiae brief once, and numerous law review commentaries, books and articles, all to support his argument. The oft-ballyhooed suggestion that Cato’s brief was determinative is a Libertarian conceit.”
The wording of the paragraph is not changed.
The Cato brief was cited twice, as noted, both times in Justice Kennedy’s factual discussion of the history of sodomy laws.
The first citation was a general acknowledgement that Cato, the ACLU and the “Professors of History” filed briefs that discussed the history of sodomy laws:
The second citation was used to take judicial notice of the fact that Illinois, followed by other states, changed its laws to conform to the Model Penal Code:
The numerical references [24] and [33] are references to paragraphs of the opinion as delineated in the text in the Open Jurist text of the opinion.
I didn’t mean to be quite so snippy to Stephen in my earlier comment, but the suggestion that Justice Kennedy relied upon the legal reasoning of the Cato brief is often bandied about as a “talking point” in libertarian circles, and the “talking point” (like most “talking points”) is absolutely without foundation.
The brief was cited to allow the court to take judicial notice of an historical fact, and is not mentioned at all in the section of the opinion in which Justice Kennedy discusses the Court’s legal reasoning.
I wish laymen would treat SCOTUS decisions a bit more seriously.
posted by Houndentenor on
The Olson-Boies team is, in my opinion, the ideal team to argue Prop 8 before SCOTUS. Between the two of them they will have no problem tailoring the argument for both conservative and moderate-liberal justices. Of course, the idea that basic civil rights needs to have a separate argument for conservatives is rather bizarre, but that’s the reality at this time. If Olson can’t accomplish that task, no one could. Considering that Scalia is still (as of last year) still bemoaning the Lawrence decision, I don’t think he’s going to budge from his own narrow-minded bigotry. But perhaps Roberts and Kennedy will listen to rational arguments from a fellow conservative.
posted by Doug on
After Scalia’s statement that the Voting Rights act is ‘a racial entitlement’, there is no doubt that he will vote to keep DOMA and Prop 8. He is a homophobe pure and simple.
posted by Houndentenor on
The “racial entitlement” comment was vile even by Scalia’s alarmingly low standards. He’s the name always mentioned when someone asks a Republican what kind of justices they would pick. That along is enough reason for me to be proud to be a Democrat. He’s a vile excuse for a human being and inexcusable as a justice. (And then there’s Thomas who takes money from groups with business before the court and then fails to report it.) Disgusting.
posted by Thom Watson on
Stephen, are the other IGF bloggers still part of this collective? The last time anyone other than you made a post was last September and dozens of entries ago. I understand that you’re “blogger-in-chief,” and therefore will be posting the most often, but where have the other voices been for the past six months? It’s difficult for me to continue to appreciate the site as a “new mainstream” when there’s only one voice and one political philosophy actually being propagated in half a year
posted by Mike in Houston on
As in Lawrence, Justice Kennedy (and perhaps, now, even Alito and Roberts) aren’t going to be swayed by the bigger-government, Democratic party-aligned progressives. But it’s still good to have them onboard.
Really?
Goodness, I guess the LGBT civil rights movement should just pack things up since the Cato folks are clearly doing all the heavy lifting.
Honestly, sometimes I wonder if someone isn’t channeling Brietbart. Some of these posts are positively on par with Ben Shapiro rants… Create a strawman, add a few choice quotes, throw in an attack on ‘the left’ and then post. No real thought required. So much for ‘forging a new main stream.’
posted by El Guapo del Desierto on
Perhaps it’s been a slow season for political and social issues, and perhaps that’s why there haven’t been many IGF bloggers of late, but wouldn’t it make more sense to wait until we have a SCOTUS ruling before we parse it?
posted by John D on
Thom, don’t say “collective.” It’ll make Stephen worry that his blog has become socialist (and that would, of course, be Obama’s fault). I’ve long ceased to think of this as anything other than “Stephen Miller’s blog.” perhaps he needs to recruit other bloggers.
posted by Tom Scharbach on
At the time of the Stonewall Riots in 1969, few would have predicted that a movement predicated upon sexual liberation would mature into one calling for the right to get married and serve openly in the armed forces.
That’s certainly true. I was 21 years old in 1969, serving in the military. In 1969, I never envisioned marriage. I even doubted that “tolerance” — being “found out” without being jailed or beaten to a pulp, being able to go to law school, to work as a lawyer, and to live my life without being harassed, derided and scorned, being able to live outside the “gay ghetto” — was a realistic goal for gays and lesbians. But that all changed over time. As we slowly made progress, I came to believe that we could make more progress. And eventually, I came to believe that legal equality was a realistic goal. By the end of the 1990’s, I believed that marriage equality was possible.
I think that my progression in thinking and setting goals is reasonably typical of men my age. Younger men have different stories, different histories, and different expectations.
Some liberal gay activists, suffering from a bout of historical amnesia, do not like what they see as an attempt by conservatives (gay and straight) to claim the cause of marriage equality as their own.
I think that they are mistaken in not acknowledging the work of Jon Rauch (who put forth the single most persuasive case for marriage equality in his 2003 book “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America“) and others who made the conservative case for marriage equality in the 1990’s and early 2000’s, but I can understand why “some liberal gay activists” are annoyed by “an attempt by conservatives to claim the cause of marriage equality as their own”.
I was certainly annoyed (as anyone who reads my comments above can tell) at Stephen’s puffery about the Cato Institute’s Lawrence brief.
Stephen as much as claimed that Cato’s brief was the determinative factor in Justice Kennedy’s opinion, and the facts don’t bear that out. And Stephen’s fact-lite overreaching in the cause of making Cato look like a major player in the struggle toward “equal means equal” is typical of many of the claims belatedly being made by conservatives in furtherance of “an attempt by conservatives to claim the cause of marriage equality as their own”. Much of what is being claimed is nothing more than puffery. It has the feel of the way in which the Vatican reverses itself — when it is time to do a 180, says my retired Catholic theologian partner, only half jokingly, the Vatican issues an encyclical that boils down to “As we have always said …”, completely ignoring that the fact that the Vatican used to say the opposite.
The problem with the conservative attempts to “own” marriage equality is that pro-equality conservatives have not put in the sustained effort that pro-equality liberals have put in over the years, and the results show.
Jon Rauch wrote a brilliant book making the case for marriage equality from a conservative point of view in 2003, and who, exactly, listened to him? Anyone in the Republican Party? Anyone else? It doesn’t show in the results. The Republican Party doubled down on anti-equality, and we have 30-odd anti-marriage amendments as a result.
The reason I bring this up is not to be churlish, but because I think that pro-equality conservatives, by electing to sit on their hands during the period from 2000 to 2010, missed an opportunity — perhaps the only opportunity — to “turn” the Republican Party before the war was fought and won by the “liberal gay activists” who got active in the Democratic Party and keep fighting until the Democratic Party signed on to equality. There is no good reason why the Republican Party could not have been similarly “turned” if anyone on the conservative side had been willing to do the work.
That’s why I get annoyed when Stephen claims that those of us who put in the work in the Democratic Party did it all wrong, didn’t do enough, and didn’t do it fast enough. While we were working oto change things, Stephen was blogging away about “inviting backlash” and criticizing our push for marriage as too fast, too far, too soon, urging us to slow down until social conservatives caught up. Go back and read the archives from the period 2004 to 2010 if you don’t believe me.
Conservatives can claim what they want. But claims won’t change the facts. A few conservatives like Jon Rauch did brilliant work in making the case for equality from a conservative theoretical standpoint. But nobody — and I mean nobody — on the conservative side followed up. For example, GOProud didn’t get around to talking about marriage equality until after the November 2012 election. I suppose they’ll be the next “to claim the cause of marriage equality as their own”. Yup. Just like the Vatican — “As we always said …”
posted by Mike in Houston on
Well said.
It was pretty damned irritating watching GOProud’s La Salvia on Thomas Roberts show last week chiming in on the “remarkable amicus brief” from those stalwart conservatives… as if his little organization hadn’t endorsed Romney (who’s still against marriage equality) and even their initial tepid endorsement of marriage equality was to push the “states rights” viewpoint.
In addition to doing the majority of the sustained, hard work that has gottent us to this point — LGBT progressives have also had to spend countless time and treasure beating back attempts by conservatives to erode any progress that’s been gained along the way towards civil equality.
As Mark Twain noted in a similar vein, “”The world has corrected the Bible. The church never corrects it; and also never fails to drop in at the tail of the procession-and take the credit of the correction.”
posted by Tom Scharbach on
“ … even their initial tepid endorsement of marriage equality was to push the “states rights” viewpoint … ”
I think “tepid” is an accurate characterization.
The guts of GOProud’s Board of Director’s statement in January says this:
In other words,
(1) GOProud supports:
(a) Marriage equality in states where marriage equality is not banned by an anti-marriage amendment.
(b) Marriage-equivalent civil unions (but not marriage equality) in states where marriage equality is banned by an anti-marriage amendment, but civil unions are not (Alaska, Arizona, California, Colorado, Mississippi, Missouri, Montana, Nevada, Oregon, and Tennessee).
(c) Domestic partner benefits (but not marriage equality or marriage-equivalency) in states where both marriage equality and marriage-equivalency are banned by an anti-marriage amendment, but limited benefits are not (Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wisconsin).
(d) GOProud is silent about its position with respect to Michigan and Virginia, which have anti-marriage amendments banning marriage equality, civil unions and “other legal status” for same-sex couples. Following the logic of the statement (“… we support ‘x’ where ‘x’ is possible …”), GOProud does not support changing the law to incorporate any legal recognition of same-sex couples in the two states.
(2) GOProud has not taken a position regarding repeal of state-level anti-marriage amendments. GOProud opposes a federal-level anti-marriage amendment.
That’s progress, but it isn’t exactly full blown support for marriage equality.
What surprises me is that LaSalvia was so fulsome in his praise for the conservative legal briefs filed in the Prop 8 litigation. If you take the Board of Director’s statement at face value, GOProud does not support efforts in state or federal courts to seek constitutional protection through the decisions of “unelected judges”. I guess it was the excitement of the moment. I saw the segment on Thomas Roberts, too, and LaSalvia was bouncing with excitement. Strange.
posted by Houndentenor on
“Some liberal gay activists, suffering from a bout of historical amnesia, do not like what they see as an attempt by conservatives (gay and straight) to claim the cause of marriage equality as their own.”
Who specifically? Why does this site always feel the need to attack a liberal or leftist strawman?
In last week’s Gay USA (available as an audio only podcast) Ann Northrup (as leftist as anyone I’ve ever met in the gay community) was THRILLED that conservatives had put up amicus briefs in the gay marriage cases. She also pointed out something I hadn’t noticed. They filed for full marriage rights nationwide, not the narrow overturning parts of DOMA. I don’t know of anyone in the gay community who isn’t excited at the news. I’m sure there’s some asshole somewhere who said something snarky (probably in a comments section). There’s always one or a few, but the vast majority of gay people, even “leftists” are thrilled that a few conservatives are coming around on gay rights and just wish there were more (and more who are actually in elected positions where they can actually do something about our issues).
I’m sick of these strawmen. “Some people say…” is not a news source. Find a real quote from a real leftist because otherwise anyone with any sense just assumes you just made it up and attributed it to your strawman. They assume that because you probably did.
posted by another steve on
Houndentenor, did you even bother to read Kirchick’s piece? Apparently not. He cites and links to the column by liberal Nathaniel Frank that accuses conservatives are trying to “steal” gay marriage:
Kirchick writes:
“Gay marriage is progressive far more than it’s conservative,” complains Nathaniel Frank in the Huffington Post. “As we welcome conservatives to the noble cause of gay equality, let’s not allow them to steal our language and our history.”