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?
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.