Supreme Court Docket 12-307:  The Stupid! It Burns!


The annals of jurisprudence, like all other repositories of human endeavor, contain some really great stuff along with a sprinkling of silly rubbish.  Think “Prohibition” or “Don’t Ask, Don’t Tell.” Or, how about the biggest loser of all time: “The Defense of Marriage Act (DOMA)”?

Americans have been living with this legal albatross around their necks for a long time now as it slowly wended its way from bad idea, enacted September 21, 1996; to political football; to indefensible travesty of law until, finally, it has been dumped on the US Supreme Court, along with its evil twin, California Proposition 8, for [probable] disposal.

Both of these stinkers arose from the conservative belief that “the best offense was a good defense.”  Since it might not play well to the whole country to declare same-sex unions anathema, they did the next best thing—define legal marriage as pertaining only to opposite sex couples, thereby excluding same sex couples from the 1,100 or so legal and financial benefits that accrue to marriage partners in our society.

Both DOMA and Prop 8 have been found wanting when challenged numerous times in lower Federal Courts.  Both have long, well-documented records of legal challenges that, nearly always, result in findings of “unconstitutional.”  DOMA is such a loser that President Obama ran, in 2008, on a platform that included repealing DOMA.

And, finally, in February of 2011, US Attorney General Eric Holder announced that, on the instruction of President Obama, the US Department of Justice would no longer defend against legal challenges to DOMA.  It’s important to note that, as long as the law still stands, the administration will enforce it but DoJ will not defend it:

unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.

Whereupon, in June 2012, two former Republican Attorneys General [and paragons of jurisprudence], Edwin Meese and John Ashcroft, called the DoJ’s decision not to defend DOMA “an unprecedented and ill-advised departure from over two centuries of Executive Branch practice” and “an extreme and unprecedented deviation from the historical norm”.

House Republicans felt pretty much the same way so Speaker Boehner took up the matter of continuing DOMA defense to BLAG, the Bipartisan Legal Advisory Group, a standing House of Representives group since 1993.  By a vote of 3–2, BLAG directed the Office of General Counsel to defend DOMA and set up a fund of $500K to hire private counsel, to defend DOMA, in the person of Paul D. Clement, a former United States Solicitor General during the George W. Bush administration.  At the time, Clement was a partner at King & Spalding.  When King & Spalding learned what Clement was up to, they withdrew from the case and Clement took his bat and ball and went to play for Bancroft PLLC. 

Meanwhile, this was looking more and more like a case bound for the Supreme Court and the Republicans needed more money to pay their lawyer.  They only had a $500K contract with Clement, appropriated via normal channels, in April 2011. Clement quickly blew through that, so, in September, 2011 Republicans appropriated an additional $1 M, in secret, bypassing BLAG.  Then again, in September, 2012, more secret money was appropriated to bump the contract up to $2 M.  Which brings us to this month, January 2013, during which House Republicans wedged another million for Clement into the House Rules.

Evidently that was “a bridge too far” for Nancy Pelosi, House Minority Leader, who together with Minority Whip Steny Hoyer wrote a blistering letter of dissent.

Savor this:

From the start, the Republican-led campaign to defend DOMA has been a practice in futility and a waste of Americans’ hard-earned tax dollars.  The Republican-appointed, taxpayer-funded legal team has lost in every case.  Courts across the nation have stood on the side of justice and equality for all Americans.  DOMA is on its way into the dustbin of history.

It would be bad enough if Republicans were losing in court and accepting the result.  Yet it is the height of hypocrisy for House Republicans to waste public funds in one breath then claim the mantle of fiscal responsibility in the next.  With Republicans willing to take our economy and our country to the brink of default in the name of deficit reduction, there is simply no excuse for any Member of Congress to commit taxpayer dollars to an unnecessary – and futile – legal battle.

Okay, that’s background.  Now we get to see what the $3 Million Dollar Man, Paul Clement, has produced for the GOP, now that SCOTUS has scheduled a hearing on DOMA and Prop 8. 

Exhibit A is what is known as a BRIEF ON THE MERITS FOR RESPONDENT, an opening Supreme Court brief which explains all of the reasons that marriage should be reserved for opposite sex couples only.

And I must here recognize Mr. Clement’s creativity for the breathtaking flight of fancy that his brief embodies.  Here you’ll find no stodgy conservative 19th century clap-trap about God’s plan or the sanctity of marriage.  Nor any smarmy accusations of immoral behavior or deviant lifestyles.  Nosiree.

It’s all pretty prosaic and pragmatic 21st century stuff.  The basis of Mr. Clement’s argument is that same sex couples do all kinds of advance planning before they raise a child.  Opposite sex couples? not so much.

Opposite sex couples can have all sorts of accidental offspring because—biology.  And that’s why they need the special legal protections and benefits of marriage lest their “mistakes” become a burden on society.  And that’s exactly why teh gayz don’t.

But, I paraphrase.  Let’s let Mr. Clement speak for himself:

The traditional marriage laws reflect a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society.

So that’s why opposite sex couples are given incentives to get married—tax breaks and credits, safety nets and all kinds of goodies.  Same sex couples have children on purpose, rather than as an oops!, so they have plenty of time to get their ducks in a row and therefore don’t need any outside help “so long as they both shall live.”

In the lower courts, defenders of the traditional laws have struggled to explain why committed couples of the same sex should be denied the benefits of marriage. The plaintiffs include same-sex couples who are raising children.  Mr. Clement has shrewdly foreseen that challenge and tried to head it off.

Clement further argues that:

It was rational for Congress to draw the line where it did, because the institution of marriage arose in large measure in response to the unique social difficulty that opposite-sex couples, but not same-sex couples, posed.

So.  Marriage was invented to keep straight boys and girls out of trouble.  Clearly, the more sensible gays don’t need it.

Mr. Clement also makes a big point about how “special” gays are, ergo, less needful of societal support.

Gays and lesbians are one of the most influential, best-connected, best-funded and best-organized interest groups in modern politics, and have attained more legislative victories, political power and popular favor in less time than virtually any other group in American history.

I wonder if Matthew Shepard’s mother buys that?  Or why a movement like the “It Gets Better” campaign goes viral?  Or why LGBT teens commit suicide more often than any other group?

Maybe they’re just not feeling the well-connectedness, the popularity or political power . . .

So, Mr Clement, when you’re not blowing smoke at the Supreme Court about something you know less than nothing about, you might want to explore a few of the real things that same sex couples don’t have that we would like to have.  [There are actually 1,138 benefits, rights and protections provided on the basis of marital status in Federal law.] 

I have been in a committed same sex relationship for 30 years and these are some of the things that my partner and I are still hoping for:

Social Security

Social Security provides the sole means of support for some elderly Americans.  All working Americans contribute to this program through payroll tax, and receive payments upon retirement.  Surviving spouses of working Americans are eligible to receive Social Security payments.  A surviving spouse caring for a deceased employee’s minor child is also eligible for an additional support payment.  Surviving spouse and surviving parent benefits are denied to gay and lesbian Americans because they cannot marry.  Thus, a lesbian couple who contributes an equal amount to Social Security over their lifetime as a married couple would receive drastically unequal benefits


According to the GAO report, as of 1997 there were 179 tax provisions that took marital status into account.  These are a few that treat married and same sex couples very differently:

Inequitable Treatment of Children Raised in LGBT Households

Tax on Gain from the Sale of the Taxpayer’s Principal Residence

Estate Tax

Taxation of Retirement Savings

Family and Medical Leave

The Family and Medical Leave Act (FMLA) guarantees family and medical leave to employees to care for parents, children or spouses.  As currently interpreted, this law does not provide leave to care for a domestic partner or the domestic partner’s family member.  Family and medical leave should be a benefit for all American workers.

Immigration Law

Currently, U.S. immigration law does not allow lesbian and gay citizens or permanent residents to petition for their same-sex partners to immigrate and regularly separates them for deportation.

Employee Benefits for Federal Workers

According to the GAO Report, marital status affects over 270 provisions dealing with current and retired federal employees, members of the Armed Forces, elected officials, and judges.  Most significantly, under current law, domestic partners of federal employees are excluded from the Federal Employees Health Benefits Program (FEHBP). 

Continued Health Coverage (COBRA)

An increasing number of employers, including 198 of the Fortune 500, now offer their employees domestic partner benefits.  Nevertheless, the Federal COBRA law does not require employers to provide domestic partners the continued coverage guaranteed to married couples.

So, it gives me great pleasure, Mr Clement to announce that I don’t think you have a snowball’s chance in hell of winning this thing.  Eleventy-eleven lower courts can’t be that wrong [but stranger things have happened with this Supreme Court, for sure.]

Oh and House Republicans, I really don’t think you’re getting our money’s worth here . . .

Posted by Bette Noir on 01/29/13 at 03:46 PM • Permalink

Categories: LGBTPoliticsBedwetters

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I saw that argument earlier today and was totally dumbfounded.  It’s so completely lame that I almost think they are trying to throw up their hands and admit they have no case.  And then this part:

Gays and lesbians are one of the most influential, best-connected, best-funded and best-organized interest groups in modern politics, and have attained more legislative victories, political power and popular favor in less time than virtually any other group in American history.

Gays and lesbians are not discriminated against because they have the ability to organize and legally redress the discrimination against them.  I mean, whutt?

I wish I felt confident that the Supreme Court would see through these idiotic arguments but we are talking Scalia, Thomas, Kennedy, etc.  Sign me with my new handle for the time being.


Maybe the Westboro amicus brief will help Clement’s case. of-Westboro-Baptist-Church

Comment by DennisMunro on 01/30/13 at 03:36 AM

@DennisMunro Incredible!  Who knew Margie Phelps was a lawyer??  Really enjoyed the Table of Authorities . . .

Well at least the WBC has a more rational argument:

1.  God hates sin
2.  Homosexuality and same sex marriage are sins
3.  God destroys sinners and anyone near them
4.  If you rule for same sex marriage God will destroy the United States (see:  Sodom, Gomorrah, honking big flood, etc.)

Now whether you agree with this argument is another thing.  But it’s better than “marriage should be reserved for opposite sex couples because they breed like rabbits and have to be protected against themselves.”

Incredible!  Who knew Margie Phelps was a lawyer??

She’s a pretty damn good one, too.

It seems that opponents of same-sex marriage are having cash flow troubles

Comment by HumboldtBlue on 01/30/13 at 03:55 PM

It seems that opponents of same-sex marriage are having cash flow troubles

Ain’t that a shame?

Incredible!  Who knew Margie Phelps was a lawyer??

She’s a pretty damn good one, too.

Yep.  that’s how the whole Westborro Baptist/Phelps grift/freakshow is supported, by being such assholes that people haul off and pop one of the Phelps, and then Marge sues the shit out of them and collects that sweet, sweet wingnut-whackin’ cash.  Quite the scam actually.

Oh and House Republicans, I really don’t think you’re getting our money’s worth here . . .

Shhhhh… let them piss their money down the drain.

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