A judge has demanded that House speaker John Boehner’s DOMA-defending pal Paul Clement answer two very basic questions about why anyone would bother defending a discriminatory law already deemed “unconstitutional” by the Department of Justice:
1) “What, if anything, do you contend are the compelling justifications for section 3 of DOMA?”
2) “What, if anything, do you assert are the legitimate government interests rationally advanced by section 3 of DOMA?”
The Bipartisan Legal Advisory Group originally objected to the questions calling them “premature contentions” awaiting articulation in actual DOMA trials. But the judge called that argument “disingenuous” and wants an answer. Seeing as Boehner can’t even answer basic financial questions about the cost of defending DOMA, it’s best he has a lawyer to handle these puppies.
How about we take this to the next level?
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But we’ll save Clement some time and answer the questions for him. One, there are no compelling justifications for discriminating against legally married gay citizens. Two, DOMA advances no legitimate government interests.
See? That was easy! Our mothers were right; we shoulda been lawyers.
B
Even funnier, there was at one point a sort of compelling interest for DOMA: it was introduced by Republicans under the assumption that Clinton would veto it, giving the Republicans a campaign issue to help Bob Dole, who ran against Clinton in 1996, but Clinton fooled them and signed it, no doubt figuring that a veto would be overridden anyway. It’s a rule of politics: when everyone else is covering their asses, you don’t want to be the one pulling down your pants.
As Bismark said, laws are like sausages – it is best not to see them being made. Hopefully this particular “sausage” will soon be recalled by the public-health inspectors.
pete N SFO
“But the judge called that argument “disingenuous” and wants an answer.”
Wow, talk about some truth-telling. Seems like we oughta put that on a t-shirt or something.
You could say the same thing about every press-release by GOP or any Conservative group in America. And the Katholic Khurch. The list goes on and on and on…
Nice Sean (formerly Sean, and Sean from england.)
@B: Hehehe, sausage.
Mark
The fact is, litigating parties refuse to participate in discovery all the time. This is how US litigation works. There are no consequences for failing to answer an opponent’s questions during discovery UNLESS the judge orders you to do so. Short of a judge’s order compelling a party to answer questions, a defendant can completely ignore the plaintiff until the very last minute when they have to face each other at trial.
This is exactly what Clements was trying to do: completely ignore the plaintiff until the real show time in court. It’s actually a good strategy from where he is sitting. His arguments for DOMA are weak and have all been shot down by other courts. He can’t possibly craft any new ones that will pass the laughing test (the others before him have tried throwing everything imaginable at the wall just to see what sticks).
So under these circumstances, it’s in his best interest to refuse to present his arguments until the last minute. The less exposure the opposition has to his arguments, the less opportunity they’ll have to craft convincing rebuttals. It is a desperate tactic but it’s the only thing he’s got right now and desperate times require desperate measures: he has nothing to lose.
Unfortunately for him, it did not work. The judge’s message basically said: “this is not just another garden variety case in my books and I’m not going to allow you to just ignore the plaintiff at your whim. You’re going to answer her questions.”
Steve
I just hope this judge isn’t satisfied with a dodgy answer. These idiots better fess up and step up their game if they even want to dream of winning this case (which they won’t).
Steve Hansen
(There seem to be two Steve’s here.)
There really are two important issues in this case. One is whether DOMA Section 3 violates the Constitution. The other is the level of scrutiny that should be applied to statutes that classify people on the basis of sexual orientation.
The briefs so far, seem to give very strong arguments that ‘strict’ scrutiny should apply. The briefs that argue for strict scrutiny include amicus briefs from the Justice department and two Attorneys General. While the trial Court has not yet written that decision, I am hopeful that it will decide that strict scrutiny applies.
Previous decisions in other cases, involving classification on the basis of sexual orientation, have stated that strict scrutiny applies, but then have decided the case on a rational-basis review.
Pete n SFO
@Steve Hansen: “rational-basis review” Scooby says, ‘rut-roh’!
Cam
How terrible that the judge is actually asking them to come up with a reason other than “Gays are icky” and “We can get some extra votes from bigots”. to justify the case.
Guillermo3
What I ,as an until recently closeted gay man ,used to ask,along with my straight friends,USED TO ASK AND ASK NOW about gay marrige was/is:Who the Fuck Cares:What difference does it make? Obviously the difference is crucial 14th Amendment one:EQUALITY under the law.
If the DOMA DUMMIES hold up religious objections (also un-constitutional),I like to quote Gore Vidal [who I generally don’t much like] who wrote that he refused”to have his behavior controlled by the dictates of a group of bronze age tribesmen.”
Steve
@Guillermo3: “Who the Fuck Cares:What difference does it make?”
Surely, you cannot be that ignorant. There are more than a thousand legal protections that go with marriage. Some of them are life-saving and life-altering.
Dennis and I have been together for almost 20 years. But, we live in Florida, and for various reasons cannot move. Florida does NOT recognized same-sex marriages.
If either of us is in hospital unconscious, the other cannot make medical decisions without first running home to get a folder full of paperwork. Then, we have to convince the hospital staff to accept the paperwork.
When we buy insurance, we have to buy two “single” policies. We cannot buy most things as a couple.
The house and some other major investments are in my name. If something happens to me, Dennis would have to ‘probate’ my estate. And, all other claims would have to be paid, first. And then, he would have to pay estate tax and income tax on the proceeds. He might not even be able to keep the house.
Even the proceeds of a life-insurance policy, would be “taxable income”, because the state does not recognize the relationship.
Under Florida law, neither of us can make funeral arrangements for the other, so long as any “blood” relative exists.
There are hundreds of other important differences. Those are just a few highlights.
bill(guillermo3)
@Steve: Dear Steve,I think you might learn to read a bit more carefuly,or at least to read an entire post_in this case to the end of my sentence.I apologize for leaving out the article “a” in my sentence:It should have read,”Obviously the difference is a crucial 14th mendment one:Equality under the law.”The “Who the Fuck Cares”
statement was a reflection of the attitude of “reasonable/enightend”people that there should be no objection to same sex marriage,if that is what the parties desire.As you rightly[and heart-breakingly] point out LEGALLY it DOES make a difference.
As much as I love & sometimes miss my native South,the kind of knee-jerk,get OUTRAGED AT ANY OPPORTUNITY attitude that you seem to demonstrate is NOT something I miss.
BUT,hopefully things can change.I’ll close with the South Carolina state motto:
Dum Spiro Spero.
Peace,
Bill
Jaroslaw
Not that the few things I’m going to say are relevant in a legal sense, well maybe the first one is….
1. There are 50,000 unwed births EVERY YEAR in my state alone. Why is this never brought up when talking about ‘protecting marriage and family?’
2. So many people, Gay and Straight, aren’t bothering to get married, which is also seldom talked about.
3. Divorce and #2 are the real threats to marriage, NOT Gays WANTING to get married. This is so obvious I can’t imagine how this argument (cultural and legal) has dragged on so long.
Guillermo3
@Jaroslaw: You’re right,of course,Jaroslav [I used to know a guy named Jaroslay_or was it slaw?_he was usually callrd “Jerry”],but tradition & prejudice die hard.
Jaroslaw
Thanks Guillermo #13 – boy prejudice, tradition and we both missed IGNORANCE. I was on another post here and some Trans advocate was complaining that the Gay rights movement often ignores them. (she even went so far as to say uses them and ignores them which will be disputed shortly) I understand, of course, but also see that the Trans issue is so misunderstood by the public and even her, apparently, that in my opinion, the Gay rights movement would go nowhere if no-Trans was a deal breaker. She went to far as to say the Trans movement went just fine without help from Gays as far back as the 1950’s! I mentioned that the public is unaware of how many babies are born with vestiges of both sex organs, perhaps more of one than the other most often that the legislation she referred to was for that medical reason. In other words, I strongly dispute that a Trans lobby had any effect whatsoever in 1950, if indeed there even was one! She didn’t refute or respond any further!
xander
@B: @Mark : I much appreciate your thoughtful explanations on DOMA’s history and the current legal issues such as ‘discovery’. This blog is lucky to have people like you commenting here!
@Jaroslaw : This cultural obsession of ‘protecting’ marriage in the US seems, to me, like a false line of reasoning — one that’s based on religious views more than data or logic. As you point out so well, hetero marriage has been faring poorly even before the push for SSM/equality.
This isn’t a zero-sum equation in which your right to marry has negative effects on someone else’s right to marry — unless, well ok, you’re trying to marry the same man, lol. (That might get ugly!)
bill(guillermo3)
@Jaroslaw: Thanks for your kind remarks,Jaroslaw,[sorry I mangled your name in my previous post_typing is not one of my strengths.]
It’s discouraging sometimes,isn’t it?__ The way we work against ourselves:as individuals,as minorities,as factions within struggling minority groups. Resentment,competitiveness,agressiveness,politics,and,I believe,vicious self-hatred cause us to work against both our personal & our group best interests and goals.Fragmentation/[no offense intended to anyone]”balkanization” too often lead to delay & defeat.
I’m sure your transgendered “opponent” knows more about the hisory of trans struggle than you or I do,but as far as I’m aware transgendered “group” identity in the 50s was limited to a very few brave,somewhat self-promoting inividuals such as Christine Jorgenson,who were generally seen as entertaining freaks.
As Benjamin Franklin said:”We can either hang together or hang separately.”In other words,for all our differences,we must unite.
Jaroslaw
#16 – Guillermo – I did look up “Transgender Timeline” on Wiki – there certainly have been men who wish they were women and vice versa far back in history; a lot of entries about mental illness and transvestites but hardly a “movement.” Jorgensen became a woman in 1952 and the movie was made about him/her in 1970. I’m sorry to repeat, but I’m just amazed that someone can pull miscellaneous legislation from 1950’s and call it a result of a non-existtent Transgender movement!
Guillermo3
@Jaroslaw: Yeah,Jaroslaw:GO FIGURE.
mick
@#10 Steve. I understand and share your frustration, however, there are ways to avoid probate of the home and protect assets for a same sex “spouse” (florida fear quotes). A basic estate plan and co ownership of accounts and property will avoid probate.
You also have, what sounds like, a lot of bad information in there with your very well grounded facts on marriage inequality. for example, life insurance proceeds are part of the decedent’s gross estate and would be taxed (if applicable) regardless of marital status. However, unless you are talking +5 million, you’re not exposed to estate tax.
Long and short of it is Estate Planning is VERY important for teh gheys. Especially where kids, long term relationships, and/or significant assets are involved. We can replicate a lot of those things the str8s get automatically and draft around the inequality in a lot of cases. It behooves you to talk to an attorney or at least do a little research.
mike
@Steve: Steve, you and Dennis need to sit down with a Florida attorney, gay or lesbian, for estate planning.
The WORST, as you point out, is having a hospital ACCEPT powers-of-attorney medical directive, etc. BUT, have you and Dennis visited local hospitals to see which ones you prefer — based on recommendations and policies about treatment of gay/lesbian patients and their partners.
But your information on some of the financial points are in error. For example, if Dennis owns the insurance policy on you, and vice versa, and premiums are paid from after-tax income, then the insurance proceeds are not taxable. Also, there are no estate/inheritance taxes for estates under $5 million ($10 million/couple). And, there are contracts that take into account survivorship in property ownership (real, cash, investments, etc) that allow the transfer of assets separate from probate requirements. — AGAIN, see an attorney; yes it is annoying and unfair, but don’t penalize yourself worse than the government already does by not preparing what is in your and Dennis’ best interests. Don’t allow a single extra penny revert to the government that discriminates against your civil rights!