March 28, 2013
(Part II of two parts)
Weak Advocates of Traditional Marriage
By Mike McManus

I was unimpressed with the quality of arguments made in the Supreme Court this week on behalf of traditional marriage by lawyers hired to oppose same-sex marriage (SSM).

When asked why he opposed SSM by Justice Elena Kagan, Charles Cooper said he was concerned that “redefining marriage to – as a genderless institution could well lead over time to harms to that institution.”

Kagan asked “What harm?” He stammered so incoherently Justice Anthony Kennedy interrupted, “Are you conceding that there is no harm?”

Cooper replied, “Redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly…”

Huh? What could he have said?

How about this: “More than 7 million Californians voted for Proposition 8 that put into the state’s constitution: “Only marriage between a man and a woman is valid or recognized in California.” They did so in 2008 when the state gave Obama a 24% margin over McCain.

“A Democratic state that voted heavily for Obama believed that marriage is the union of husband and wife for a reason: these unions can make new life and connect children to the mother and father who made them. Every child deserves a mother and father – which is impossible in same –sex marriage. Their opinions deserve respect.”

Then he could have asserted, “The Federal judge who invalidated Prop 8, is an active homosexual living with another man. Therefore he should have recused himself from the case before arrogantly overturning the vote of 7 million people by his single vote, and promptly retiring.”

On Wednesday the issue being debated was the Defense of Marriage Act (DOMA) which states that in federal law “the word `marriage’ means only a legal union between one man and one woman as husband and wife.” Edith Windsor filed a suit against the law. She lived with a female partner for four decades before marrying in 2007. The partner died in 2009 and bequeathed her substantial estate to Ms. Windsor.

Had her partner been male, there would have been no federal inheritance tax. But she had to pay $363,053 in taxes because the two women were not married according to DOMA.

Justice Sonia Sotomayor challenged Paul Clement who was defending DOMA, saying “So they (Congress) can create a class they don’t like – here, homosexuals” who “they consider is suspect in the marriage category” and “decide benefits…when they themselves have no interest in the actual institution of marriage?”

Clement responded, “I’m not suggesting that the Federal Government has any special authority to recognize traditional marriage.”

Incorrect. That’s exactly what Congress was doing when it passed DOMA in 1996.

Hawaii’s Supreme Court had ruled that the denial of marriage to a SSM couple was discriminatory and ordered a lower court to reconsider. Clement correctly noted that Hawaii is “a very nice place to go and get married. And so Congress is worried that people are going to go there, go back to the home jurisdictions, insist on recognition in their home jurisdictions of their same-sex marriage in Hawaii.” The result could be “same-sex marriage is basically going to be recognized throughout the country.”

In DOMA, Clement said Congress asserted, “Let’s take a timeout here. This is a redefinition of an age-old institution. Let’s take a more cautious approach where every sovereign (state) gets to do this for themselves.”

What Clement should have added is that one provision of DOMA is not under challenge, that no state can be forced to recognize a same-sex marriage of another state.

He should have also noted that DOMA was passed in 1996 by overwhelming votes of 342-67 in the House and by a stunning 85-14 in the Senate. Even Senators Joe Biden and Harry Reid voted Yes. And Bill Clinton signed it six weeks before the Presidential election. Had he vetoed it Bob Dole would probably have been elected.

DOMA was a reaffirmation of traditional marriage. Hawaii has still not legalized SSM 17 years later. While nine states have done so, 41 states still support traditional marriage.

What will the Supreme Court do?

The key swing vote is that of Justice Anthony Kennedy. In the Prop 8 case, he said, “There are some 40,000 children in California…that live with same-sex parents, and they want their parents to have full recognition and full status.” On the other hand he said the court was in “uncharted waters” and questioned whether the Court should have accepted the case.

My prediction: the Court will allow lower court rejection of Prop 8 to stand, but won’t uphold SSM’s constitutionality. And it will overturn DOMA so federal benefits will go to SSM couples in states legalizing it.

Caution is warranted.