No. (To get that out of the way.)
But, the question is posed to see if John Aravosis calls him a liar.
John has had some great coverage at AmericaBlog of the overreaching Obama Justice Department brief filed today in Smelt v. United States. But his implication that DOJ can just willy-nilly decide not to defend laws has gotten more than a little frustrating. Politico reported on the DOJ response about the filing, which was:
As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.
John called this position “an outright lie” — a position he has not backed away from. I disagree. As I noted in my initial post on the DOJ filing:
As John Aravosis has pointed out, there are situations in which the Justice Department has refused to defend laws that it believes are unconstitutional. Obviously, that is fact. The reality is that those situations are very rare, and only happen when Justice comes to a determination that there is no rational argument to be made in favor of the law’s constitutionality. Mere disagreement, even belief that a law could be determined to be unconstitutional, is not a legitimate basis for a government lawyer to refuse to defend a law. [Robert Raben, an openly gay former Clinton Justice Department lawyer, makes the same point here in The Washington Blade.]
Now, with that background, eminent legal scholar and Harvard Law School professor Laurence Tribe has told The Advocate’s Kerry Eleveld pretty much the same thing:
Under the traditions of the solicitor general’s office, the government does have an obligation to provide a defense in any lawsuit where there is a plausible argument to be made, even if the president does not agree with the law.
There certainly are cases where the government declines to defend the law, but those are few and far between. If congress were to pass a law that flew directly in the face of a binding Supreme Court precedent — a law outlawing early-term abortion or a law providing for “separate but equal” schools — the obligation of the Justice Department to the Constitution would trump its obligation to defend the laws of congress.
But DOMA is in a gray area where there are experts like me, who think it’s unconstitutional, and you can find experts who hold the opposite view, and it’s certainly not a slam-dunk.
So, John, is Tribe a liar too?
Popularity: 1% [?]
Chris Geidner is the senior political writer at D.C.'s Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
I keep hitting my head on my desk and saying “Baker v. Nelson” over and over. Can I make a federal question by sending the SCOTUS a postcard that says “why can’t a same-sex couple that is married in Vermont still be married in Washington State?”
Such an evil and simple law, and older than me.
John Aravois is really making an ass of himself on this. And his co-bloggers are still doing the “OMG you compared SSM to incest!” whine. The most likely change to DOMA that Obama and Congress will make actually will be to treat SSM like other variation in marriage law: states are not obliged to recognize out of state marriages, but a marriage recognized in any state is a marriage the federal government will recognize (i.e. first-cousin marriages are recognized as marriages by the federal government, even if Texas doesn’t allow such marriages). Saying it’s inherently offensive and outrageous and out-of-the-question to compare SSM to such federally-recognized marriages is a nice way to shoot this significant improvement in the law in the foot.
The DOJ has gone further than precedent, though, by trying to create two new classes of marriage: heterosexual marriage and homosexual marriage. The intent of the various state initiatives to legalize gay marriage was, at least in part, to do away with any legal distinction between the two. The DOJ is essentially arguing for federal common law that defines each kind of marriage differently, and inherently arguing that that federal common law trumps the state’s attempt to equalize civil marriage.
Someone tell me if I’m wrong, but I haven’t seen a precedent for the federal government denying marriage benefits to, e.g., a mixed-race marriage on the basis that there are two kinds of marriage under federal law: same-race marriage and mixed race marriage.
John,
But many states always allowed for interracial marriage, so the federal government has always had to recognize interracial marriages. There never was a period in U.S. history where there were no interracial marriages at all; of the original 13 states, NY, VT, NH, CT and NJ never prohibited interracial marriage. (And of course what was deemed “interracial” varied greatly from one state to another. Many statutes drew a line between whites and all non-whites, while some like Oklahoma’s drew the line between blacks and all non-blacks.)
In contrast, there is no state that has always allowed for same-sex marriage. It is an innovation in our law to recognize SSM. There also never has been any variation from marriage to recognize interracial relationships; either they were criminally penalized, or they were legally recognized as marriages. There were no domestic partnerships, civil unions etc. for interracial couples.
While I consider Loving v. Virginia a significant precedent for the unconstitutionality of a state government’s distinguishing between citizens for the purpose of marriage on a basis that the Constitution does not allow (whether it’s race or sex), if you’re going to argue that because the federal government never treated interracial marriage as a new form of marriage, it cannot say that SSM is a new form of marriage, you might want to compare their respective histories more carefully. When the Lovings got married to D.C. and then moved to Virginia, they weren’t just dealing with having the Commonwealth refuse to treat them as spouses. Under the laws against fornication, and particularly interracial fornication, they were criminally liable for living together when Virginia did not recognize them as husband and wife.
I do not know of a case where an interracial couple were demanding benefits; all the cases regarding interracial couples with which I am familiar were either demands to be allowed to marry in a state that forbade their marriage, or appeals from criminal charges.
PG–
Exactly. So given the lack of on-point precedent, the brief cites precedent–offensive to some–which, if anything supports Section 1 of DOMA, not 2 (see br. at 16-18). The DOJ’s cited argument stretches the precedent out of shape, and for that reason alone need not be made, regardless of whether the DOJ has an obligation to defend Section 2 of DOMA.
As an aside, I’m not sure what definition of tautology you’re applying, but the statement that “[u]p to this point, I believe the federal government took a marriage, so long as duly licensed by a state, as a marriage for purposes of determining federal benefits” does not qualify under any traditional meaning. Perhaps you mean that statement is misleading?
But you’ve provided no precedent that plaintiffs actually do have a constitutional right to federal recognition of their marriage. You say that the federal government has recognized state-licensed marriages in the past even when there were disparities among states, but you haven’t provided any precedent for the claim that there’s a constitutional right to such recognition, rather than its being at the discretion of the federal government.
Given that Romer and Lawrence were based on rational basis review, and Lawrence specifically carves out marriage (”[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”), there’s no precedent on which to rely in saying that sexual orientation is a suspect classification such that failing to recognize SSM would violate a constitutionally-protected form of equality.
The only instance I can find where the federal government was unwilling to recognize a type of marriage, the Supreme Court ruled that there was no constitutional right to such a marriage. I don’t know of a precedent for the federal government to be forced to recognize a marriage that Congress has said it doesn’t want to recognize.
In short, Smelt might reasonably be considered premature. It requires a judge willing to push past rational basis to a level of scrutiny used for sex classifications (which is where I’ve always thought sexual orientation belonged anyway since it’s based on the sex of the parties).
Tautology – Logic – a compound propositional form all of whose instances are true, as “A or not A.”
“The federal government recognizes a state’s marriages or the federal government does not recognize the political entity to be a state if its marriages are disapproved.”
PG–
Thanks for the thoughtful response. A couple points:
There’s an argument that gay marriage isn’t new at all–rather, the right existed in various state constitutions but was always unconstitutionally denied or never before properly recognized. But that’s not critical to my point.
My argument is also not precisely that “because the federal government never treated interracial marriage as a new form of marriage, it cannot say that SSM is a new form of marriage”. Rather, my point is, for the purposes of granting federal benefits to married couples, I don’t believe any precedent allows the federal courts to deny that a marriage is or is not a marriage. Up to this point, I believe the federal government took a marriage, so long as duly licensed by a state, as a marriage for purposes of determining federal benefits. Is that incorrect?
John,
Sure, and one can argue that women always had the right to vote and it was just unconstitutionally denied or never before properly recognized until the 19th Amendment. Even to someone who isn’t a legal realist, “it’s still a right even if it was invisible until very recently” is not a good argument. It’s also irrelevant to the precedent of the federal government’s recognizing marriages.
The federal government has recognized marriages licensed by states, but this is potentially tautalogical given that territories that refused to conform their marriage laws as the federal government desired were not allowed to become states. For example, within Utah polygamous marriages were recognized, but the territory was refused admission to the Union until it had outlawed such marriages. That would be an instance of a type of marriage that the federal government had never recognized before (in contrast to interracial marriage, which the federal government always had recognized).