Marriage gets "a legal union between one man and one woman as husband and wife." Spouse gets "a person of the opposite sex who is a husband or a wife."
In Febraury of 2011, President Obama stated the government would no longer defend against lawsuits attacking the constitutionality of DOMA. Part of the reason for that change was because of a lawsuit filed by Edith Windsor.
In summary, Edith Windsor and Thea Spyer were married in Toronto in 2007 after being together for forty years. They moved to New York, which began recognizing same-sex unions in 2009, and Thea Spyer died that same year. Edith Windsor got slapped with a $363,000 estate tax bill because the federal government refused to accept her marriage. She filed suit against DOMA claiming that had she been straight and married, the estate tax bill would have been significantly different.
In response to Obama's February declaration against DOMA, House Republicans took up the fight to protect DOMA in court.
The House of Representatives hired Attorney Paul Clement, who acted as President George W. Bush's Solicitor General, to defend DOMA in court since federal lawyers would not. Cost to the tax payer? $520 an hour, not sure that was ever on the list of potential budget cuts during the debt ceiling crisis. The idea of an attorney making that kind of hourly rate doesn't bother me, but it feels a little awkward paying that much for the legislative branch to overstep into the executive side of things. It's even more awkward since I completely disagree with DOMA and once again, wish that John Boehner et al would stop acting on my behalf on social issues.
Brian Brown, the head of the National Organization for Marriage, has no such compunction:
"At last we have a legal eagle on this case who actually wants to win in court!"
declared Brian Brown of the National Organization for Marriage.
NOM has fought against marriage rights for gay and lesbian families, taking a major role in the rescinding of then-existing rights for gay couples in California in 2008. NOM also spearheaded a successful bid to roll back marriage equality in Maine after legislators in that state approved it.
I can see part of Brown's point. It's probably better to not bother defending DOMA at all than to waste everyone's time defend it with half-measures, but then again I would argue it's probably better to do the right thing in the first place rather than discriminate against people who want to be married to a same-sex partner.
"Paul Clement is a genuinely distinguished lawyer, a former solicitor general of the United States, who we are confident will win this case," Brown continued. "Thanks to Speaker Boehner’s actions, President Obama’s attempt to sabotage the legal defense of DOMA is not going to work."
Which brings us back to Edith Windsor's case. Clement released his legal positions in defense of DOMA. Two sections of note, highlighted by AMERICAblog Gay (a subset of AMERICAblog that focuses on gay rights issues) in their article:
First part of note:
Plaintiff is not entitled to judgment as a matter of law. Her claim to summary judgment fails at the threshold: Contrary to her arguments, no form of heightened scrutiny applies to Section 3 of the Defense of Marriage Act (“DOMA”). Pub. L. No. 104-199, § 3, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7. Rather, DOMA is subject only to rational basis review. And (as made clear in the memorandum of law simultaneously filed by the United States House of Representatives’ Bipartisan Legal Advisory Group (the “House”) in support of its motion to dismiss), DOMA easily passes the rational basis test and does not violate the Equal Protection component of the Fifth Amendment.Couple of things here. Clement argues that DOMA itself only needs to pass a rational basis test in order to exist. In legalese, a rational basis test means that you have to look to see if the legislature had a rational cause to create a law or if the law was created arbitrarily. So, is it arbitrary to deny someone the legal right to marry just because that person wants to enter into a same-sex marriage? It feels arbitrary to me. We don't deny interracial marriages (although we did before... wait for it... the Supreme Court overturned legislature denying interracial couples the right to marry in Loving v. Virginia). So why should same-sex marriage be any different?
The answer?
Plaintiff next argues that sexual orientation is immutable. Pl.’s Mem. Summ. J. at 17-18. She states that “the Attorney General has recognized[] ‘a growing scientific consensus [that] accepts that sexual orientation is a characteristic that is immutable.’” Id. at 18 (second alteration in original) (quoting Feb. 23, 2011 Letter from Eric A. Holder Jr., Att’y Gen., to John A. Boehner, Speaker of the U.S. House of Reps. (Feb. 25, 2011) (ECF No. 10-2)) (“Holder Letter”). Whether a classification is “immutable” is of course a legal conclusion – not a scientific one – and the Attorney General’s selective reading of scientific evidence warrants no deference from this Court. His conclusion and the Plaintiff’s argument are also both wrong.Edith Windsor's lawyers argued that sexual orientation is an immutable trait, like skin color. The Attorney General agreed. Clement's response... essentially a giant "Shut your filthy face, science. We're dealing with the legal definition of immutable now, not your soft around the edges scientific one." Also, Clement claims the Attorney General cherry picked sources that support Windor's point, ignoring the tireless efforts of such American treasures as Marcus Bachman (Michelle Bachman's husband):
If sexual orientation is not immutable, then on some level, it must be a choice, and if it's a choice... well then Ms. Windsor chose the ladies when she could have just as easily chosen the gents. Therefore, DOMA doesn't really discriminate, Windsor could have chosen a different path to avoid her estate tax bill, case closed.
While this may shock the people who know me best, most specifically my wife Harold, I'm straight. That part of me was never on a to-do list... "buy milk, decide if I like chicks or dudes, quarters for laundry." It just was, so I'm going to go about a third of an inch out on the logic limb to assume the same holds true for Ms. Windsor. I anxiously await to hear how the word immutable means one thing in English and another thing in court.
And with all of this sound and fury, let's not forget what's at stake. The very institution of Marriage hangs in the balance. Here's a recap of last week's episode of Straight Marriage:
- Bachelorette Ashley Engaged! Love After Lies.
- Doug Hutchinson and 16 Year Old Bride Shopping Reality TV show.
- Bridezillas.
- Say Yes To The Dress
- Whose Wedding is it Anyway?
- Getting Married With the Kardashians
- E! Deciding How to Broadcast Kim Kardashian's Wedding
- Tori and Dean: sTORIbook Weddings
- Love Games: Bad Girls Need Love Too
- Rock of Love
- Strange Love
- Flavor of Love
- Bridalplasty
- 41% Divorce Rate
The list could obviously go on, but I'm sure you get the point. Of course, it goes without saying that the National Organization for Marriage doesn't appear too concerned with the hetero threat to the institution.
In the end, Clements argues:
Any effort to redefine the institution of marriage as something other than the union of one man and one woman is a matter best left in the hands of the elected, politically accountable branches of the federal government and the citizenry through the democratic process.
I'm not sure why since the legislature has a terrible track record for handling social equality issues. Slavery, Women's Suffrage, the Civil Rights Movement... all helped along by courts that finally had the courage to stand up to some level of dissenting public opinion and legislative efforts to maintain the status quo. In other words, the legislative branch is often years behind the times, and our current House of Representatives is no different with DOMA.
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