Dissenting Justice on the DOMA Brief, Part II: The Legal Arguments

Yesterday, President Obama hosted members of GLBT rights organizations at the White House. Formally, the meeting commemorated "LGBT Pride Month." Underneath the surface, however, the meeting served a different purpose. Obama convened the gathering in order to alleviate growing anxiety among GLBT organizations concerning his commitment to gay rights.

Although Obama promised to seek the repeal of the Defense of Marriage Act (DOMA) and Don't Ask, Don't Tell, the military continues to discharge personnel based solely on sexual orientation, and the Department of Justice recently filed a brief that defends the constitutionality of DOMA. The government's defense of DOMA led to stinging criticism of President Obama by many prominent GLBT rights advocates.

[Note: A previous blog entry on Dissenting Justice analyzes the political rifts the brief caused. This essay and a subsequent one examine the legal content of the brief.]

DOMA 101
DOMA contains two major provisions. One section of the statute declares that states do not have to recognize same-sex marriages that other states consider legitimate. This part of the law purports to authorize states not to extend "full faith and credit" to same-sex marriages.

The other important section of DOMA adopts a heterosexual definition of "marriage" for federal programs. This part of the law denies same-sex couples any benefit (or obligation) that federal law extends to married couples, such as health care, joint-tax filing, etc.

The Brief
The government's brief argues that DOMA is constitutional in all respects. Surprisingly, the full faith and credit arguments have received the heaviest criticism -- even though this particular part of the statute is not really the most damaging to same-sex married couples. In the absence of DOMA, states that disapprove of same-sex marriage would probably still decline to recognize these marriages, which would lead to the same type of litigation that DOMA has already caused. Furthermore, it is likely that the Supreme Court -- not Congress -- will probably have the final say on what the Full Faith and Credit Clause requires of states in this setting.

The denial of federal benefits, however, is solely within the control of the federal government. According to the President's own previous statements, DOMA denies over 1,100 benefits to same-sex married couples. Even if individual states recognize same-sex marriages, DOMA still makes those marriages meaningless for purposes of federal law.

Standard Full Faith and Credit Analysis or Equating Same-Sex Marriage and Incest?
The Constitution requires states to give "Full Faith and Credit. . .to the public Acts, Records, and judicial Proceedings of every other State. . . ." Based largely on the Full Faith and Credit Clause, states traditionally have recognized marriages performed in other states.

The government's principal argument in defense of DOMA's full faith and credit provision contends that courts have allowed states to deny recognition of marriages from other states that violate their own "public policy." The relevance of the public policy exception to same-sex marriage has received an enormous amount of attention from legal scholars. Furthermore, the government's discussion of the exception represents a fairly routine way of analyzing the legal issues presented by the Full Faith and Credit Clause.

Despite its unexceptional nature, this section of the brief has inflamed many GLBT advocates because the Department of Justice cites to a series of cases that apply the public policy exception and allow states to deny recognition of certain marriages. These cases include an incestuous marriage between an uncle and his niece, a marriage involving a 16-year-old, and a marriage between first cousins.

John Aravosis at Americablog wrote a very critical analysis of this part of the brief which makes the following observations: "Holy cow. Obama invoked incest and people marrying children. . . .Then in the next paragraph, they argue that the incest and child rape cases therefore make DOMA constitutional. . . ."

These arguments, however, severely misrepresent the content of the brief. Certainly, the precedent deal with incest and age requirements for marriage, but these cases merely support the proposition that states can object to marriages that contravene their own public policy. They do not, however, turn on the general morality or desirability of the particular marriages, which were in fact legal in the "home" states. Instead, the cases conclude that where a public policy conflict exists, states can deny recognition without violating the Constitution. Finally, the brief never equates same-sex marriage with incest or "child rape" -- neither explicitly or implicitly.

These cases do not necessarily justify the nonrecognition of same-sex marriage by states, but they also do not substantiate the deepest public criticism of the brief by GLBT advocates -- that the Department of Justice brief compares same-sex marriage to incest and child rape. This argument is simply wrong.

Other scholars who advocate GLBT rights have taken a similar view. Nan Hunter, a law professor at Georgetown University Law Center and a longterm proponent of GLBT rights, describes the arguments by Aravosis and many other critics as "irresponsible attacks." Also, Chris Geidner, author of Law Dork, wrote an extensive essay that responds to the distortions Aravosis made and continues to make.

I enjoy reading Americablog, and have previously cited to it. I abhor and have criticized the homophobic linkage of same-sex marriage with incest and pedophilia. I was also one of the first bloggers to question Obama's commitment to GLBT rights, which I continue to do. Nevertheless, the DOMA brief, though awful in many respects, does not equate same-sex marriage with incest or child molestation.

Concluding Thoughts
Although many pro-GLBT advocates have unfairly criticized the Obama administration's defense of DOMA's full faith and credit provision, they are generally correct in condemning the government's argument that DOMA does not deny equal protection to same-sex married couples. In fact, if courts accept the equal protection analysis in the DOMA brief, this would represent a major setback for GLBT rights and would have negative implications beyond DOMA.

Accordingly, the Obama administration's equal protection position absolutely conflicts with his campaign promises -- although during yesterday's meeting, he downplayed any inherent conflict between his defense of DOMA and his "commitment to reversing this law." Obama's words, however, do not stand up to honest scrutiny. Alas, in the interest of space and time, I must defer my analysis of the equal protection arguments to another day. Stay tuned.

The Right-Wing Agrees With Me Concerning Rick Warren (Sort Of)

Conservative commentator Rick Lowry takes issue with people who are "yelping in rage" over Rick Warren's participation in Obama's inauguration (yelping?). Lowry argues that Warren's critics have attempted to portray him as a "hate figure," even though his views on same-sex marriage represent the views of most Americans:

[Warren] believes what a majority of Americans do, what the vast majority of the
planet does, and what all major religions maintain about marriage: namely, it
should be defined as between a man and a woman."

Although Lowry writes to condemn progressive critics of Warren (which includes yours truly), we agree one one issue -- that Warren's opposition to same-sex marriage falls within majoritarian viewpoints. In the essay, The Fallacy of Obama's "Diversity" Defense: Rick Warren's Views Already Have a Place at the Table, I argued that Obama's attempt to portray Warren's participation in his inauguration as a respect for "diversity" bends reality because most Americans, like Warren and Obama, oppose same-sex marriage (and other gay rights issues). Warren's participation, however, has provoked anger primarily because he compared same-sex marriage with statutory rape, incest, and polygamy.

In an effort to bash progressives, however, Lowry omits any discussion of Warren's incest, statutory rape, and incest analogies. But this line of bigoted thinking does more injury to GLBT people more than mere opposition to same-sex marriage, because it rests on pernicious stereotypes of gay and lesbian people.

Because most Americans oppose same-sex marriage Obama does not risk losing too much political support over Warren. In fact, he apparently has gained some credibility among conservatives -- which is probably a leading reason why Obama asked Warren to participate.

Related Readings on Dissenting Justice:

"Change" Has Arrived: NYT's Frank Rich Criticizes Obama For the First Time!

Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!

Rick Warren versus Don Imus: Obama's Inconsistent Positions

The Fallacy of Obama's "Diversity" Defense: Rick Warren's Views Already Have a Place at the Table

Embracing Uncle Good-But-Homophobic: Why "Reaching Across the Aisle" to Rick Warren Does Not Feel Safe to Everyone

New Obama Drama: GLBT Groups Upset That Rev. Rick Warren Speaking at Inauguration

Reactions to Reverend Rick Warren from My Blogger Buddies

Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!

Slippery slope arguments abound in same-sex marriage discourse. Opponents to same-sex marriage argue that if states legalize same-sex marriage, then nothing can stop them from legalizing a host of other relations, including incest, pedophilia, polygamy, or even bestiality. Ellen DeGeneres has a great comedy skit mocking the bestiality argument, in which she pretends to have breakfast with her mate -- a goat. When she reaches for the morning paper, she discovers, to her dismay, that her partner has eaten it. That is just about how seriously I take the slippery slope arguments myself.

The debate over the scheduled appearance of Rick Warren at Obama's inauguration has renewed debates over same-sex marriage, and slippery slope arguments have reemerged as a tool of its opponents. Warren argued that same-sex marriage was the moral equivalent of incest, polygamy, and pedophilia. Today, on Real Clear Politics, Mona Cheren of Creators Syndicate, Inc., defends Rick Warren by embracing slippery slope arguments as well. Cheren contends that:

Once you abandon the traditional definition of marriage to suit the feelings on an interest group, by what principle do you stop redefining marriage? Gays and lesbians argue that their same sex unions are loving, committed relationships. Fine. But there are, or could be, other loving, committed relationships involving more than two people. . . .

Once traditional marriage -- supported by centuries of civilization and the major Western religions -- is undermined in the name of love, there is no logical or principled reason to forbid polygamy, polyandry, or even incest. Gay activists recoil from incest. But on what grounds exactly? Suppose, after we formalize gay marriage, two 25-year-old sterile (to remove the health of offspring argument) twins wish to marry? Let's suppose they are loving and committed. What is the objection? That it offends custom and tradition? That it offends God? Isn't that just bigotry?

Cheren rejects the claim by many GLBT individuals that Warren's comments linking same-sex marriage with pedophilia are bigoted because, according to Cheren, no material distinctions between same-sex marriage and these other "undesired" relations exist. Although slippery slope arguments are wildly seductive, they fail in two important respects.

Unable to See the Difference Between Adam's Boyfriend, Mother and Pet Labrador Retriever
First, slippery slope arguments assume no logical distinction between the proposed change (here, recognizing same-sex marriage) and the parade of horribles that exist on the slope (incest, pedophilia, bestiality, etc.). But even if Cheren's mind is unable to comprehend a distinction between same-sex marriage and these other categories, this does not disprove the existence of a meaningful and workable distinction.

On many levels, the prohibition of same-sex marriage, incest, pedophilia, bestiality, and polygamy all relate to an amorphous notion of "morality." But this sweeping concept cannot serve as a logical principle for shaping legal rights, because it could validate the prohibition of virtually everything a majority of the public finds distasteful. For that reason, the Supreme Court has held that morality alone cannot sustain laws that discriminate or deny liberty.

Beyond morality, it is easy to imagine concrete reasons for banning pedophilia or bestiality, such as lack of consent. Adult consensual incest tends toward the "just morality" argument in many ways, although valid concerns about the health of offspring exist in this context. And even though morality arguments certainly shape opposition to polygamy, exploitation concerns exist in this setting as well that could provide a legitimate basis for regulation. So, while opponents to same-sex marriage operate under the assumption that gay Adam's prospective spouse Steve is indistinct from Adam's mom or his loving pet Labrador Retriever, this belief does not hold up to scrutiny -- absent some horrible prejudice about what gay people do in the bedroom.

Why Does Heterosexual Marriage Miss the Slope?
A second problem with using slippery slope arguments to challenge same-sex marriage is that the users fail to demonstrate why heterosexual marriage does not place society on a dangerous slippery slope. In other words, the opponents of same-sex marriage do not show how opposite-sex marriage differs materially from same-sex marriage such that it does not lead to the feared parade of horribles. Instead, they simply assume that the heterosexual status quo is the only "safe" place for society, presumably because marriage has existed in this form for "centuries."

Once the state validates some relationships, however, it potentially opens the door to a host of competing claims for legal recognition (or at least tolerance) of other types of relationships. But heterosexual marriage could present an even greater risk that society "slides" down the slope in some contexts than same-sex marriage. For example, the vast majority of incest, pedophilia and polygamy cases involve heterosexual men exploiting younger females. Yet, this has not caused society to ban heterosexual marriage.

I do not believe that the frequency of heterosexual incest, polygamy and pedophilia, however, warrants the prohibition of heterosexual marriage, and the opponents of same-sex marriage clearly agree. Nevertheless, because incest, polygamy and pedophilia are much more closely connected to male heterosexuality, if any type of marital relationship implicates these social problems it is traditional heterosexual marriage, not same-sex marriage.

Are the Slippery Slope Proponents Disingenuous?
Cheren and Warren argue that they are neither anti-gay nor bigots. Instead, they object to same-sex marriage purely on policy grounds. Other proponents of the slippery slope argument have made similar claims. But when these same people, like Warren, say that they embrace "civil unions" instead of marriage, this suggests that their objection to same-sex marriage arises out of a heterosexist desire to preserve marriage for heterosexuals rather than to prevent the eventual legalization of child rape and incest.

The same slippery slope arguments that Warren advances in the same-sex marriage context could apply to civil unions as well. If he and Cheren are correct, then same-sex civil unions could lead to demands for pedophilic, incestuous, and polygamous civil unions. The fact that the slippery slope claims vanish when opponents of same-sex marriage advocate the civil unions consolation prize probably means that their objections to same-sex marriage probably have very little (if anything at all) to do with principled policy. Instead, opponents of same-sex marriage merely want to preserve the status quo -- or "centuries" of tradition -- against changes engendered by decades of pro-gay and feminist advocacy. But a desire to preserve a discriminatory past cannot justify the continuation of discrimination. This argument holds whether or not we label same-sex marriage opponents as "bigots."

[Editors Note: I actually believe that the distribution of important social resources strictly around marriage needs serious questioning. If health care or death benefits, for example, are important social goods, why narrowly link them to romantic relationships? Despite my skepticism about the value of marriage as a tool to distribute social resources, I strongly believe that opposition to same-sex marriage violates equality norms; accordingly, I resist the opposition, despite my general skepticism about the value of marriage.]

Related Readings on Dissenting Justice:

Rick Warren versus Don Imus: Obama's Inconsistent Positions

The Fallacy of Obama's "Diversity" Defense: Rick Warren's Views Already Have a Place at the Table

Embracing Uncle Good-But-Homophobic: Why "Reaching Across the Aisle" to Rick Warren Does Not Feel Safe to Everyone

New Obama Drama: GLBT Groups Upset That Rev. Rick Warren Speaking at Inauguration

Reactions to Reverend Rick Warren from My Blogger Buddies

Don't Ask, Don't Tell, Don't Hold Your Breath

Stonewalling on Don't Ask, Don't Tell? No Action Until 2010

Robert Gates as Obama's Secretary of Defense: "More of the Same" for Gay Rights?

Would Obama Have Won If He Were Black...and Gay?

Anti-Gay Group Thanks Obama, Seeks to Exploit Black Homophobia to Constitutionalize Bigotry