On August 1, 2011, lawyers for the House of Representatives filed briefs in support of the constitutionality of the federal Defense of Marriage Act. Adam Bink at Prop 8 Trial Tracker has posted both briefs: one is a Response to Interrogatories and the other is a Brief in Opposition to Plaintiff's Motion for Summary Judgment. In this post I will analyze the House's response to the court's interrogatories.
On February 23, 2011, Attorney General Eric Holder sent a letter to Speaker of the House John Boehner stating that President Barack Obama had determined that the Department of Justice would no longer defend the Federal Defense of Marriage Act in court. As a consequence, the House of Representatives was invited to hire attorneys to make arguments in support of the law.
Edith Windsor's wife Thea Spyer died in 2009.  Because the federal Defense of Marriage Act does not recognize same-sex marriages as valid, Windsor was required to pay over $350,000 in federal estate taxes that a surviving spouse of an opposite-sex marriage would not have had to pay.  Windsor sued the United States in federal court in the Southern District of New York.   The judge in the Windsor case filed interrogatories asking the federal government two questions:
"What, if anything, do you contend are the compelling justifications for section 3 of DOMA?âWhat, if anything, do you assert are the legitimate government interests rationally advanced by section 3 of DOMA?â
These two questions are really one; the judge was asking the House to state the reason or reasons why the federal law refuses to recognize same-sex marriages. No matter what standard of review the court eventually determines to be applicable to this question, the House must identify at least one rational, legitimate reason for treating same-sex couples differently than opposite-sex couples. This is a minimum requirement under the Constitution. The Supreme Court has stated many times that people who are "similarly situated" must be treated alike – only if there are "real differences" between different groups may they be treated differently. Furthermore, these "real differences," says the court, must be "fairly related to the object of the legislation." The law may not treat people differently for arbitrary or capricous reasons, nor is it sufficient for the government to simply point out that the group being discriminated against is different in some respect. The distinguishing factor must be fairly relevant to the benefit or privilege that the government is depriving that group of people of. In this case, the district court pressed the House to articulate why it wished to treat same-sex couples differently with respect to marriage.
The attorneys for the House of Representatives responded by identifying five reasons that support the constitutionality of the law. The House claims that the purposes of the law are:
defending and nurturing the institution of marriage by acting with proper caution in the face of the unknown consequences in the face of a novel redefinition of the foundational social institution of marriage;protecting the public fisc and preserving the balance struck by earlier congresses in allocating federal burdens and benefits;
maintaining consistency in eligibility for federal benefits based on marital status;
defending and nurturing the institution of marriage by avoiding the creation of a social understanding that begetting and rearing children is not inextricably bound up with the institution of marriage;
and defending and nurturing the institution of marriage by creating legal structures that make it more likely that children will be raised by parents of both sexes.
That's it. The answers to interrogatories simply repeat the foregoing list in response to both of the judge's questions. Explanations and support for each of these propositions will appear in the substantive briefs, in particular the other brief filed in opposition to the plaintiff's motion for summary judgment.
In my opinion the House's framework in support of the law is paper thin. Here is my evaluation of each of the House's asserted interests.
1. Caution in light of the unknown
It has been 15 years since DOMA was enacted. The question of same-sex marriage has been the subject of sharp and constant political debate, a large volume of social science research into same-sex families, and protracted litigation including the Prop 8 trial that created a voluminous record of that research.  The House may not interminably assert that it must treat people differently because it cannot be sure that they are not the same. At some point the House must either prove that families headed by same-sex couples are not as worthy of recognition as families headed by opposite-sex couples or it must concede that it lacks such proof.   The House's first answer to this interrogatory implicitly concedes that it has no evidence demonstrating how same-sex couples are so different as to justify withholding recognition of their state-sanctioned marriages.
2. Protecting the public fisc
Even more than the first asserted government interest, this argument amounts to a concession of unconstitutionality. The government can never justify treating a group differently in order to "save money." The Equal Protection answer to this assertion is Ron Paul-like – "So save even more money by denying recognition and funding to all marriages!" The government may not "protect the public fisc" by arbitrarily denying some people a benefit. If money is a problem, then simply reduce the amount of the benefit so that it may be shared by all persons similarly circumstanced. As for the desire not to upset judgments by earlier congresses, it is unlikely that the courts would award retroactive relief to those persons who do not file suit within the period of limitations, even though same-sex couples paid their taxes just like everybody else but did not qualify for benefits. There will not be "reparations" in this situation any more than in other civil rights contexts.
3. Maintaining consistency
The House argues that it is "maintaining consistency" by denying equality to same-sex couples. Good luck with that argument! In addition to being inherently contradictory, this simply raises the question of why the federal government wishes to "maintian consistency" – it must still explain to the courts why it has chosen to withhold recognition of same-sex marriages.
4. Marriage is for begetting and rearing children
This argument raises questions of overbreadth and underbreadth. More than ten percent of opposite-sex couples are infertile. A significant portion of these opposite-sex couples use many of the same assisted reproduction techniques that same-sex couples use to conceive children. (My wife has helped both opposite-sex and same-sex couples to conceive in this way.)  Many more opposite-sex couples choose never to have children. Opposite-sex couples are not expected to divorce if they do not have children or if their children predecease them. People past the age of childbearing stay married and enter into marriage. Their is no law or social custom that prevents all these marriages, and DOMA recognizes all of these marriages so long as the spouses are of the opposite sex. Finally, one may fairly ask, if marriage is so central and important in the lives of children raised by opposite-sex couples, why is it not just as central and important to the hundreds of thousands of children being raised by same-sex couples in the United States? DOMA does not directly help a single child, but it does grievously harm many. Striking it down will make a major difference in the lives of hundreds of thousands of children.
5. Making it more likely that children will be raised by parents of both sexes
There are two basic problems with this asserted governmental interest. First, why does the House believe that a child is better off being raised by an opposite-sex couple rather than a same-sex couple? And second, how does DOMA achieve its goal of making it more likely that children will be raised by opposite-sex couples?
If the government can produce social science research demonstrating that opposite sex couples are better at parenting than same-sex couples then it may win this case. However, all of the recent social science research on the question demonstrates that there is no significant difference in the parenting abilities of same-sex and opposite-sex couples.
Furthermore, DOMA does not provide a single child with parents of different genders. It simply withholds important legal benefits from the families of same-sex couples. Will the House argue that DOMA persuades people to change their sexual orientation? Or that the law encourages gays and lesbians to enter into opposite-sex relationships and bear children despite their orientation? The House may have difficulty proving either proposition.
What is most striking to me is that the House has declined to make the single constitutional argument relied upon by Justice Scalia and other conservative justices in support of laws that discriminate on the basis of sexual orientation. Justice's Scalia's principal argument – his only argument – is that society is justified in discriminating against gays and lesbians even to the point of incarceration because such discrimination is in furtherance of "traditional sexual mores." In Justice Scalia's opinion, the history of discrimination against gays and lesbians is not something to be ashamed of, but rather serves as legal justification for existing laws that discriminate.Â
It is a step forward that the House has chosen not to assert an approach to constitutional interpretation that would enshrine traditional prejudices in the Constitution.
Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.
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