Watching court arguments for and against equal marriage in a federal appeals court in Boston today, I have to wonder how "equal protection under the law" can have any meaning if Congress is permitted to discriminate against an entire class of Americans.
I was particularly perplexed by Paul Clement, the attorney flown in by Republican House Speaker John Boehner and the US House of Representatives' Bipartisan Legal Advisory Group to defend the "Defense of Marriage Act" (DOMA) after the Department of Justice refused to defend the law. Just last week, Clement was arguing before the U.S. Supreme Court that Congress trampled on the Constitution when it passed a law that regulates the health insurance market by requiring everyone to participate or pay a fine.
Today, arguments about individual liberty took a back seat, as Clement instead urged the Court to defer to Congress by upholding the 1996 law that discriminates against people based purely on their sexual orientation.
So much for individual rights! Oh, I know, I know, Clement is just a hired gun. Still, it was eerie to hear a guy who just last week was waxing eloquent about individual liberties today suggest that Congress has a right to pass a law that denies equal protection under the law to people because of an immutable characteristic.
Clement himself seemed to have a hard time giving the court a "rational basis" for the law. Initially, he suggested that the federal government needs to stop same-sex couples from marrying as a way to save public dollars.
But, as GLAD attorney Mary Bonauto pointed out, why not save money by passing a law to refuse marriage to red heads? Oh, right, that would be unconstitutional.
Then Clement suggested that the federal government has an interest in marriage in order to "accommodate unplanned offspring" born to different-sex couples.
But the federal government has never required an intent or ability to procreate (whether accidentally or on purpose) as a basis for the right to marry. And if ensuring a stable environment for rearing children is an important government interest, why wouldn't that same interest extend to ensuring a stable environment for the hundreds of thousands of children of same-sex couples?
The eeriest moment of all came when one of the judges asked Clement whether he thought that Congress could pass a law defining marriage as only between people of the same race without violating the equal protection clause of the Constitution. The reference was to the 1968 ACLU case, Loving v. Virginia, in which the Supreme Court held that state laws against interracial marriage violate the equal protection clause of the Constitution.
It's a good question, and one that wasn't adequately answered by Clement, and can never adequately be answered by Congress or anyone else who thinks that it's okay to deny equal protection of the law.
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