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GOP Lawyer Cites 1885 Polygamy Case In Federal DOMA Suit Involving NY Lesbian

Paul Clement, the attorney representing Republican Speaker John Boehner’s Bipartisan Legal Advisory Group, turned to an old precedent to defend DOMA in a case facing New York’s Second Circuit Court of Appeals.

Really old—like, 1885 old.

On Thursday Clement presented arguments in the case of Edie Windsor, 83, who is suing because she was forced to foot a $350,000 federal-estate tax bill when her Thea Spyer, her lawfully wedded wife (in New York, anyway) passed away, thanks to DOMA.

In his opening statements, Clement admitted he’s got his work cut out for him: “There’s no way to preserve the definition of marriage [as one man and one woman] other than by preserving the definition.. It becomes somewhat circular.”

You don’t say?

It was in his closing rebuttal that Clement brought up polygamy, citing a court case involving the Utah territories, which were ordered to outlaw polygamy in order to achieve statehood.

As Buzzfeed’s Chris Geidner explains:

More than 30 years before the U.S. Constitution would be amended to prohibit voting discrimination based on sex, the Supreme Court upheld the constitutionality of a law that required those in the Utah territory to take an oath that included a statement that the male was violating bigamy or polygamy prohibitions.

The case, which cited the infamous Dred Scott Supreme Court decision declaring that slaves were not citizens under the U.S. Constitution as evidence of governmental powers in the territories, was mentioned by Clement. It’s the case, he told Judge Chester Straub, a Clinton appointee to the bench, where the Supreme Court referenced the “traditional understanding” of marriage.

The 1885 case takes a hard line on the role of marriage in the post-Civil War nation, in reference to the practice of polygamy in the Utah territory.

The court wrote that “no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth … than that which seeks to establish it on the basis of the idea of the family [is] consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.”

That definition of marriage, the court wrote in 1885, is “the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”

Considering that “guaranty of reverent morality” involved depriving 50% of the population their civil rights we’re not so sure its the best precedent to bring up.

By:           Dan Avery
On:           Sep 28, 2012
Tagged: , , , , , , , , ,
    • Kendrick

      Well here is another example he fail to bring up, the Plessy v. Ferguson decision where the Supreme Court later overturn with Brown v. Board of Education. It kind of ironic to me that he would bring up a pathetic of an excuse to defense for something that would soon be overturn by the Supreme court. These GOP don’t not know when to quite and save face, they are totally humiliating themselves to the point of unrecognizable.

      Sep 28, 2012 at 8:04 pm · @ReplyReply to this comment ·
    • Captain proton
      Captain proton

      “union for life” – So if the judge finds for this guy, does the decision automatically makes all divorce in that state illegal?

      Sep 29, 2012 at 1:52 am · @ReplyReply to this comment ·
    • alexoloughlin

      I was unaware that civil marriage is an holy estate. Since when? I’ve attended many civil marriage ceremonies, no mention of religion or invocation, no mandate to procreate either. Civil marriage actually redefined marriage when it allowed hetero adulterers and divorced people to remarry, sometimes over and over. The Netherlands has had marriage equality for more than eleven years. Wouldn’t that be long enough for the opponents to come forward with factual evidence to support their spurious claims regarding polygamy, incest and all manner of delusional relationships they seem to obsess about every time marriage equality is being discussed? It hasn’t prevented heteros from marrying or procreating and it never will so I don’t understand why the bigots keep insisting that it diminishes their marriages.

      Sep 29, 2012 at 8:06 am · @ReplyReply to this comment ·
    • Jonathonz

      “That definition of marriage, the court wrote in 1885, is “the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”

      Yes, and that is one of the best arguments I’ve heard for extending the right to marriage to gay and lesbian couples.

      Sep 29, 2012 at 11:51 am · @ReplyReply to this comment ·
    • Charli Girl
      Charli Girl

      They’re just embarrassing themselves. I can only guess that they are coming up with ” notta” but trying to grasp in order to “look busy”????!

      Sep 30, 2012 at 3:29 pm · @ReplyReply to this comment ·

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