House Republicans’ Final Written Argument Against Marriage Equality: Nuh-Uh!

House Republicans' Attorney Paul Clement

House Republicans have filed a reply brief defending the Defense of Marriage Act before the Supreme Court, but the arguments boil down to “nuh-uh” or “just because” responses to Edie Windsor’s attorneys. Though it reiterates many of the arguments made in their initial brief, here’s a summary of the final written arguments against marriage equality in the DOMA case:

Same-sex marriage is still an “experiment,” so Congress was allowed to be cautious: “But when Hawaii was poised to become the first jurisdiction in the United States to deviate from the traditional definition, there was nothing incautious about retaining the traditional definition as the federal definition while states began a process of experimentation. That approach was a rational exercise in caution and a rational approach to the issue given our system of dual sovereignty.”It’s more “uniform” to ban all same-sex marriages than to recognize all valid marriages: “But the federal sovereign has a unique interest in treating a survivor of a same-sex relationship in New York the same as a survivor of a same-sex relationship in Oklahoma. And DOMA rationally furthers that uniquely federal interest in nationwide uniformity.”Most states ban same-sex marriage, so it’s rational that Congress did it too: “It bears emphasis that the traditional definition was the only definition at the time of DOMA’s enactment and remains the rule in more than 80% of the jurisdictions.”Children are better off with their biological parents: “DOMA’s opponents challenge as irrational the long-held cultural judgment that a child’s biological parents are, other things being equal, the child’s natural and most suitable guardians.”Only straight couples need marriage because only they have kids accidentally: “Marriage as an institution is linked to the unique tendency of opposite-sex couples to produce unintended offspring and the societal interest in providing a stable structure for raising such children.”DOMA doesn’t deny marital eligibility to same-sex couples: “DOMA defines terms for purposes of federal law; it does not deny marital eligibility— which remains a matter of state law—to anyone.”Gays aren’t politically powerless like women because women were discriminated against under the law: “The Court’s application of heightened scrutiny, despite the majority status and substantial achievements of women, was explained instead by over a century of official disenfranchisement that left the statute books littered with laws based on outdated stereotypes.”Sexual orientation is a behavior, not an identity: “Unlike the recognized suspect classes, sexual orientation is defined by a tendency to engage in a particular kind of conduct.”Let democracy play out on same-sex marriage so opponents aren’t called bigots: “The democratic process requires opposing sides to attempt to persuade each other, to understand each other’s positions, and perhaps, at least temporarily, to reach compromises that both sides can accept. A constitutional right to same-sex marriage, on the other hand, could be achieved only by marginalizing, as bigoted at worst or irrational at best, the ‘profound and deep convictions’ of those who disagree.”

Some of these arguments are simply rhetorical speculation (“experiment,” “uniform”), others are completely untrue (DOMA rejects states that recognize same-sex marriages, gays do have a history of disenfranchisement under the law), and others defy the lived experiences of gays and lesbians and their families (children who are adopted, sexual orientation as an identity). None of them reflect reality, and none of them should survive the scrutiny of the Court’s questions next week.

(HT: Kathleen Perrin.)

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