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NOM's latest voice of DOMA: Begins with 'irrational' claim, gets less persuasive from there

by Jeremy Hooper

To continue to support their going nowhere "Defend DOMA" effort, the National Organization For Marriage is turning to the opinion of Maggie Datiles, an associate fellow in law at the Culture of Life Foundation. NOM cites this quote from Ms. Datiles:

Maggie Datiles5. Federalism and Judicial Tyranny

... By branding DOMA as “irrational,” the Obama Administration has attacked the integrity of the legislative process taken by Congress when it enacted DOMA. In doing so, the Obama Administration also challenged the sanity and intellectual ability of all of the Members of Congress who voted for the passage of DOMA. In spite of these harsh accusations, the Administration has yet to offer pointed arguments specifically disproving the credibility of the arguments and supporting evidence considered and recorded by Congress when it enacted DOMA.

Maggie Datiles, JD, on what we need to know about DOMA [NOM Blog]

Right. Okay. So first problem: The claim that Obama administration has branded DOMA as "irrational" is fundamentally wrong. In fact, the very reason why the administration *did* defend DOMA is because they found rational basis to support it, regardless of personal view. But now, the administration is arguing for heightened scrutiny, which is to say that further court proceedings must take a broader view that focuses on governmental interest, not just rational basis. And this is where the administration finds fault. Attorney General Holder:

These new lawsuits, by contrast [to previous cases where the administration did defend the law], will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).

Per this read of a society where married gay taxpayers exist among us, the administration is increasing the scope:

A.G. HOLDER: In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

So back to Ms. Datiles' claims: The idea that the administration is engaging in ad hominem labeling is a wholly anti-intellectual talking point which itself constitutes an ad hominem attack. The attempt is to make the administration sound unconsidered and irresponsible, when in fact they are being rational and reasoned. The Obama administration doesn't need to question the "sanity" or "intellectual ability" of any who voted for it. There are no "harsh accusations" that need to be made. The administration simply sees the enactment as WRONG under the constitution of the United States, something President Obama has been consistent about from the beginning. Why must the administration's position come with some sort of mean-spirited slighting of this former Congress (many of whom now also oppose DOMA, as does the president who signed it)? Nobody within the administration has presented evidence to merit such a claim!

And then let's look at the absurd claim that "the Administration has yet to offer pointed arguments specifically disproving the credibility of the arguments and supporting evidence considered and recorded by Congress when it enacted DOMA." Uhm -- huh?!? Did Ms. Datiles miss this:

A.G. HOLDER: Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.

Every single word of the administration's position has belied the claims made in support of the '96 Congress's majority action! The administration has talked fully about the "[r]ecent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives." Because Let's not forget that DOMA was completely born from the breath of the FAMILY RESEARCH COUNCIL, who presented to Congress "evidence" like this:

"If homosexuals achieve the power to force others to pretend that their unions are 'marriages,' then people of conscience will be told to ignore their God-given beliefs and to support what they regard as immoral and destructive.

Homosexuality has been discouraged in all cultures because it is inherently wrong and harmful to individuals, families and societies. The only reason it has been able to gain such prominence in America today is the near blackout on information about homosexual behavior itself. We are being treated to a steady drumbeat of propaganda echoing the stolen rhetoric of the black civil rights movement and misrepresenting science."
Robert Knight, July 2, 1996, speaking on behalf of FRC at a Capitol Hill briefing on DOMA

Do not be fooled: This was the tenor of the Dole/Gingrich-led Congress where the majority GOP voted for the thing as a 277-1 block. The Obama administration has MORE than called the "credibility of the arguments" in question!

So it's one thing for NOM and company to "defendDOMA [dot com]." But in doing so, they are going to have actually defend their biased baby against the facts that fill its flawed face. It's certainly easy to make our president sound like a big baddie who fought for the highest office just so he could sit around and throw schoolyard insults at senators of the Helms era. But when the goal is to keep discrimination in an America that has historically risen up against the same, NOM's own defense deserves heightened scrutiny too.

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