Reaction from interested groups:
"Not only are House Republican leaders defending the indefensible, they've brought in a high-priced attorney to deny federal recognition to loving, married couples," said Joe Solmonese, president of the Human Rights Campaign. "Speaker Boehner appears ready to go to great lengths, and the great expense of a high-power law firm, to try to score some cheap political points on the backs of same-sex couples."I would like to see the Defense of Marriage Act go, and I encouraged the Obama administration to decline to defend it, but I don't think it's "indefensible," and in fact, it deserves to be defended, and the House Republicans did the right thing in hiring Clement. The country deserves a well-briefed, well-argued case presented to the Supreme Court. The other side is already represented by Theodore Olson, another former Solicitor General. I hope Olson wins, but not because he's the better lawyer. It is absolutely fitting that he be matched with a lawyer of equal stature, skill, and will to prevail.
"At last we have a legal eagle on this case who actually wants to win in court," said Brian Brown, president of the National Organization for Marriage. "Thanks to Speaker Boehner's actions, President Obama's attempt to sabotage the legal defense of DOMA is not going to work."
Whatever the outcome, we will all benefit from the marvelous lesson in law these 2 men will provide.
Posts
72 comments:
Soooo not the time for this issue. My kid's future taxes care not a whip for Fred marrying Bob.
I find in my practice that clients are not interested in marvelous lessions in law; they want to win.
I'd wonder out loud what part of the Constitution authorizes the Feds to pass this kind of law, but really, nobody cares about that anymore, do they?
Rome burns, and the fiddle yields songs about cultural wars.
In films, the ironic placement of music is used to convey another meaning to the action unfolding.
Here, it suggests bathos.
This is, unfortunately, what happens when you elect conservatives -- fiscal ones. At some point, as elections loom, they think that to be re-elected they have to get the social conservatives (back) on board. And unfortunate decisions like this one get made.
There's a "law"?
Like gold, extremely malleable. And Clement and Olson will come with hammers.
Then there'll be a "law'.
Until the next "Clement & Olson" come with hammers. Then we'll get another "law."
(Note: I'm still blue in the face from saying we're a nation of men, not "laws." After all, how could it be any other way.)
Waste of time and money. Ridiculous.
The Executive branch has a constitutional obligation to defend this law. Of course congress is doing the right thing. If Obama doesn't like it, he can lobby to have it overturned.
The idea that the government finds a law to noxious to support is absurd. Have they forgotten who makes the laws?
This is, unfortunately, what happens when you elect conservatives -- fiscal ones.
Does it work in reverse? President Obama was elected on a whole host of liberal bread-n-butter, but since taking office, has continued a whole host of Bush's policies. Staring down the barrel of tough re-election fight, and the very outside chance of an insurgent primary challenge, is he cleaving to the bread, the butter, both, or neither?
`
There is a mentality in this country that says that "rights" are never something approved by a majority vote.
But history clearly shows that every major "right" that exists in the United States does so only after said right was eventually voted - by a majority - into place.
Bill of Rights? Majority voted in.
End of Slavery in the entire United States? Majority voted in.
Women's Right to vote? Majority voted in.
Civil rights in the 50's and 60's?
Majority voted in. When bussing was forced before the majority was ready . . . how many deaths were there again?
Whether by amendment or a majority vote of their democratically elected representatives - are you listening Wisconsin? - this country is not torn asunder because every major right has found a majority to vote it in.
This is why Roe v Wade and it's discovery of a modern-day out-of-thin-air-created "right" is the social and moral problem it still is today: it is an illegitimate "right", established by an unelected and unaccountable court.
If the Defense of Marriage Act is overturned, it will be the same thing. A festering wound forced upon an America not yet - and hopefully never as far as I'm concerned - ready for an unelected court to violate the current will of the American people.
`
"On the backs of same sex couples". Sounds like he is opposed to threesomes.
If gays get marriage, then straights should get domestic partnerships.
If gays get marriage, then straights should get domestic partnerships.
If gays get marriage, my wife and I should be able to start dating women with the intent of marrying another one into our family.
Waste of time and money. Ridiculous.
Nonsense! You have the Packers, we have the SCOTUS Bowl!
Of course, we'll have to watch in the dark.
The odds are fixed - like cement - 5-4, the smart money on Olson.
MadMan, the lion's share of our costly government programs exist to remedy social ills indisputably linked to single parent families.
It is not irrational to think that we'll never fix the debt until we help people learn to form and keep two parent families.
Yet the left persists in striking heavy blows to the foundation of society, while desperately pleading for increase spending to shore up the sagging superstructure.
That's pure insanity.
MadMan, the lion's share of our costly government programs exist to remedy social ills indisputably linked to single parent families.
Tell me how preventing the gays from marrying fixes that.
Quayle
You seem to have missed social security, medicare and Bush's great drug plan. It's the old people.
Marriage is the very center of the center of society. Unless we get this right, we get nothing right. It is only when someone is married that they can begin to contribute to the community. Without that, people are lost, in general. Defining this and getting it right is a top priority. The problem is that many on the left are waiting with animals, and multiple partners. At the U. of Chicago, Martha Nussbaum is readying us for polygamy, and says it should be a right (using India of all places as her example), as long as women can have as many partners as men. This would seem to go against the American principle of equality that we've been trying to define at least since Jefferson and Lincoln and ML King. But multiculturism is going to bring in India and Hinduism and Islamic principles (in Islam they use the fourth generation in Genesis, not the first, as their exemplar, in which someone named Lemach or something had four wives).
I hope a clear line is drawn that makes some sense to the rest of us. Otherwise it might as well be midnight at the oasis.
Tell me how preventing the gays from marrying fixes that.
Are you serious?
Do you really not get it? I expect more backbone, more than just political correctness from you MadMan
It is only when someone is married that they can begin to contribute to the community. Without that, people are lost, in general.
Patently false. I'm a huge marriage support and am happily ensconced myself. But you're suggesting that when I was single and in the military, I wasn't contributing. Further, you're suggesting when I was married the first time, I was contributing, but I'll state plainly that it was one of the most miserable and least productive points of my life.
Marriage is many, many things and far more positive than negative. But don't make blanket statements the invalidate an extremely large swath of population simply to make a bad generalization, making it sound like bedrock, axiomatic truth.
Tell me how preventing the gays from marrying fixes that.
Nice try. The burden of proving suitability of materials proposed for a foundation is on the proposer.
You are proposing that gay 'marriages' are suitable for producing stable and productive citizens in next generations, you have the burden to prove it's true.
rdkraus, social programs that support the old are only possible when the number of young people in society matches or exceeds the number of old people. Show me how naturally-barren gay marriages are aligned to support that model?
You're making the incorrect presumption that the family structure that got us to this level of affluence isn't necessary to sustain it.
But you're wrong.
So how is that DADT repeal going?
What?
You mean it is still illegal for military members to engage in homosexual sex?
As it has been for 100 years or more.
You mean it is still legal to be openly gay in the military? (Provided one can show celibacy)
And here I thought DADT was repealed last year.
Obama said so!!!
Would he lie about that?
John Henry
Brent, my spine is very healthy because of all the dairy products I consume.
Thank you.
Quayle says that two-parent families are the bedrock of society (I paraphrase). I see few differences, in my experience, between two-parent families with opposite-sex partners vs. same-sex. Same issues, same difficulties, same worries.
Madman:
How can a same sex couple be a "two parent" family?
Seems to me that one will usually be a parent (biological)and the other will be, at best, a step-parent (non-biological)
At least that is what I learned in Jr High School many many years ago.
John Henry
GK Chesterton would have asked you to explain the reason for the fence before demanding to tear it down.
Same issues, same difficulties, same worries.
Ah, but one has one woman and one man, and one doesn't.
The left is all about the strength of diversity, except when it comes to parent genders - then it's OK to be the same.
But in biology it is difference and diversity that produces strength.
The strengths inherent in the personality and processes of a woman are matched by those of a man.
The child gets a full spectrum interaction.
We don't yet know how children, and third generation grandchildren will be effected by narrow-band parents, even loving and committed one, as I fully admit there are.
But is that enough?
John Henry, have you heard of adoption?
`
The gay "agenda" driven by a passionate few, followed by the unthinking yet deeply "feeling many" and backed by the bottom line spineless, is ultimately to have no marriage at all.
Those who truly believe that same sex marriage will be the end of the destruction of society's foundational building block of the family are naive beyond repair. The goal is any sexual relationship, any age, anyone. With no government restrictions or blessing. The dicks of gay men and the cunts of lesbians rule their lives and eventually will be the downfall of the United states if we begin by letting anything go. No society, no culture has been spared decline and ultimately disappearance long after the binds of marriage and societal recognition of the 2 parent opposite sex family is ridiculed and taken off it's rightful place of supremacy.
And here's a word of advice for the traditional marriage defenders: do not waste your time with the "what about polygamy argument". The ones driving the unlimited fornication agenda just laugh. They could care less how many people you marry. The ones who protest and say they don't want polygamy but defend same sex marriage are lemmings who either "feel" their way having taken leave of their senses and are void of reason, or are spineless in the face of friends and peers who make them cower in political correctness. None of them are worth your time on this issue.
`
Whatever the outcome, we will all lose from the pedantic lesson in the games lawyers play these 2 men will provide.
Fixed it for you
Quayle
You're moving the goalposts. You first talked about single parent families. Now you're talking about barren gay families.
Either way, it does not matter, some 2-5% of society has always been gay, and will continue to be gay, regardless of this "law." Stopping gay people from being married is not going to effect the number of people paying for old people on ss, medicare, etc very much, if at all.
I see few differences, in my experience, between two-parent families with opposite-sex partners vs. same-sex. Same issues, same difficulties, same worries.
I'm libertarian on the issue, so I don't care, but let's not trip over the line into equivalence. If you want to argue that two-parent households have the same issues (regardless of gender makeup) regarding paying the bills, mowing the grass, groceries, etc, fine. Those are also the same for non-married roommates.
But the woman's perspective and the man's perspective my wife and I bring to the parenting table is, by definition, different that what a man/man, woman/woman, could. People can argue until the sun burns out about which combination is superior, but don't try and paint them as "same" because they're not.
I, personally, believe the genders are wired different for parenting and that it benefits the children to get both flavors for their upbringing.
Of course, all the above assumes a stable marriage, regardless of type. Comparisons to dysfunctional or broken homes do not apply here.
The dicks of gay men and the cunts of lesbians rule their lives and eventually will be the downfall of the United states if we begin by letting anything go.
Sing it brother!
It is a travesty that this decision comes down to two lawyers and a judge.
Jeez... just leave the gay people alone already! Social conservatives (and now House Republicans) should stop trying to make their lives as difficult as possible. Making them suffer does no good for anyone. They are Americans, after all, and if the federal government is going to prescribe rules or offer benefits to "married persons", then it ought to rely on the individual states' definition of marriage. The government should try to support its citizens, all of them, every one.
Oh, I can hear you now... "But this isn't about making gay people suffer, it's about the law and blah blah blah..." Bullshit! The social conservatives want to inflict pain (or at least difficulty, which is all they can do) on a group of people because of their sexuality. They blame everything-- absolutely everything-- that they think is wrong with this country on what people they have never met do in the privacy of their own home. Demonize the gays!!! Demonize the gays!!!
Maybe it gets votes. But it solves NO problems.
Social conservatives seem to have no compassion, no empathy, and seem (like here!) to always support big, all-encompassing, intrusive, anti-Federalist government. The Republican party needs to be free of their influence; and our country needs the Republican party to solve America's problems. Social conservatives are the one group that is holding back the Republicans and therefore America, letting it atrophy.
Obama was right in not trying to defend the indefensible. We don't need a show right now, but the House Republicans and their social conservative backers insist that one be put on. They'll probably also insist that Judge Judy preside.
I see few differences, in my experience, between two-parent families with opposite-sex partners vs. same-sex.
You skipped high school biology, I see.
Why do I suspect that after the SCOTUS overturns DOMA they'll be some celebrating and then a collective
Is that all there is?
Social conservatives seem to have no compassion, no empathy . . . .
Uh-oh, "empathy"! Didn't Obama talk a lot about empathy? When I hear "empathy" I reach for my wallet and my gun.
@Pogo
Unfortunately, in America, it is usually two lawyers/lawfirms and judges who decide major issues.
Why do I suspect that after the SCOTUS overturns DOMA
This Supreme Court will not overturn DOMA or uphold any judge-ordered SSM against a popular referendum. Kennedy is the swing vote and he is on record in Lawrence that his judicial repeal of anti-sodomy laws is not about marriage rights. Also he is very reluctant to get too far ahead of the popular vote--which has gone overwhelmingly against SSM in the past decade.
Madman
Of course I have heard of adoption.
That may make someone legally a "parent"
It doesn't make them one biologically. As I was careful to point out, fearing nitpicking from folks like you.
Unless you know something I don't? Some new technology, perhaps?
John Henry
But the woman's perspective and the man's perspective my wife and I bring to the parenting table is, by definition, different that what a man/man, woman/woman, could.
My perspective as a man in my child-rearing is probably different from the (IMO Inferior -- especially for some of the men who live nearby and I'm thinking of one in particular) perspective of other men in the neighborhood I live in.
Different is simply that. Not always better, not always worse, just different.
Pardon my ignorance, but didn't the Democrats just have the Presidency and a huge legislative majority 2009 - 2011? Why didn't they just repeal DOMA legislatively if it's such an affront to humanity?
Oops -- I meant to put a smiley after the word inferior.
if the federal government is going to prescribe rules or offer benefits to "married persons", then it ought to rely on the individual states' definition of marriage. The government should try to support its citizens, all of them, every one.
even the single ones? if marriage benefits which were intended for the people raising the next generation of society are extended to everyone who couples, single people will also sue for equal treatment under the law, meaning no special benfits for anyone, all of them, every one.
Social conservatives seem to have no compassion, no empathy, and seem (like here!) to always support big, all-encompassing, intrusive, anti-Federalist government. The Republican party needs to be free of their influence; and our country needs the Republican party to solve America's problems. Social conservatives are the one group that is holding back the Republicans and therefore America, letting it atrophy.
Mind boggling, Julius.
So, why do I know gays who either don't give a damn about gay marriage or who oppose it?
Gay marriage is a contradiction of language itself.
I'm no activist. This is a silly issue brought to us by drama queens with nothing better to do, but I don't care enough to do something about it. I'll survive, without regard to the result.
Here's an interesting question. Just a few weeks ago, the same leftists who were screaming at that Florida minister for burning a Koran was admonishing us not to incite Muslims to violence.
Allowing gay marriage is a far more incendiary incitement to retaliatory violence from Muslims.
Perhaps we should refuse to endorse gay marriage so that Muslims won't behead infidels?
And, yes, I think that legalizing gay marriage will open a Pandora's Box. The unintended consequences will be beyond imagination.
And, no, it isn't a civil rights issue.
I can live with or without gay marriage, but I am so looking forward to gay divorce!
Just think of the fun when some middle age queen loses half of the East Village brownstone to his main squeeze for sneaking off and blowing that cute head waiter at that trendy new Italian place.
I know that gay men think they're going to game this system, but the gay community has no shortage of pissed-off ex-lovers who want to go after your money (just like us straights). And when you show up before a 58 year old, hen-pecked, two kids in college judge, and whimper "but, your honor, we all do it" you can kiss your assets good-bye.
Welcome to socially enforced monogamy, assholes!
@MM
You had original said there were no differences. My point was that there were fundamental differences. I don't buy the "neither is better or worse" argument because of that.
I think it's absurd we ever allowed the state to completely abrogate our purest of *social* institutions.
Whatever the outcome, we will all benefit from the marvelous lesson in law these 2 men will provide.
And, yes, I agree with the earlier commenter.
We will all be diminished by having two lawyers and a judge decide by fiat an issue that should be decided by the electorate.
You're a lawyer, Althouse. You like power. It shows in this post.
That ole "Will To Win"is very important in face of the chaos we are experiencing from the "destroy and re-make America" Obama team. In fact that little will to win item may be exactly what makes Trump our next President.
So, in this case, I'd really like an answer, Althouse.
How do you justify the arrogance of having your little fraternity (the legal biz) impose its will on the electorate on such a fundamental issue?
Your arrogance is insulting and preposterous.
And pretty common among lawyers. That's one of the main reasons I stopped working for them. They were almost all arrogant insufferable assholes who thought they had the right to rule other people's lives.
OK, I predict the first and most obvious unintended consequence of legalizing gay marriage:
Within 10 years, the Catholic Church will face discrimination lawsuits that will force it to perform gay marriages, and priests will be brought either to trial or before regulatory commissions to answer to hate crime charges for preaching traditional Catholic doctrine.
Already happening in Canada.
DOMA was proposed by Willie and, no surprise, was always intended as politics - to nail down support on the Right.
Boehner spending money on this now is no less.
Anent Julie's whine about empathy, it's nonsense and beside the point. Encouraging homosexuality has never worked (Roman empire, anyone?) and never will. Chase and others who talk about marriage and the family as the bedrock of society are correct. The Lefties have been trying to destroy them, along with religion, community, and morality, for the simple reason that, with all of them gone, all that's left is the State and who is supposed to run that?
Chase said...
There is a mentality in this country that says that "rights" are never something approved by a majority vote.
But history clearly shows that every major "right" that exists in the United States does so only after said right was eventually voted - by a majority - into place.
Bill of Rights? Majority voted in.
End of Slavery in the entire United States? Majority voted in.
Seem to remember a war imposing an end to the Peculiar Institution.
Scott M said...
If gays get marriage, then straights should get domestic partnerships.
If gays get marriage, my wife and I should be able to start dating women with the intent of marrying another one into our family.
The goal is no family or marriage at all. That way a pregnant woman becomes a single mother, dependent on the state with her children wards of said state.
And here is why I hate voting for Republicans.
WV: conduns. (Condom/Gay Marriage/Conundrum joke goes here. )
sthomas, my understanding is that Government-appointed marriage commissioners do have to perform same-sex marriages in Canada -- upholding the law, after all.
Ordained ministers face no such compunction. That won't stop people from filing law suits, of course, but it means the law suit will fail.
Divorced people cannot marry in the Catholic Church. That's a Catholic Church rule that's unlikely to change. Should a divorce(e) be able to sue the church about it? Sure. Will the suit fail? Sure. Same goes with same-sex marriages in a church.
WHY is it that the gay lobby insists on using that specific term, rather than just fight for the concepts that could be protected under contract and corporate law principles!?
Because that would not make them a useful voting bloc, able to be whipped up at need. Ditto for the other side.
I often wonder if Rome was saddled with the same sort of bullshit baggage their politicians felt the burning need to sort out while the empire schismed right in twain. Probably something to do with same-sex vomitoriums, I'd wager.
I suppose, though, that we should take some solace in the fact the Romans most likely did have something similar to deal with. After all, it took a long, long time for them to fall apart. On the other hand, if they had smartphones and twitter, they might have sped it up to a mere generation as we're looking to do.
Isn't this a little bit like the brouhaha over semen being a mood lifter?
"This HAS to be unconstitutional because I don't like it."
and
"This HAS to be unscientific because I don't like it."
It's as silly as insisting that something MUST be constitutional because it has majority support. If it is or if it isn't constitutional has nothing to do with people's feelings about it all.
We go by feelings and preferences and pretty soon we're at the point that it's okay to deliberately shut down other people's right to speech and assembly because those rights only apply to people who say the right sorts of things.
Ordained ministers face no such compunction. That won't stop people from filing law suits, of course, but it means the law suit will fail.
Divorced people cannot marry in the Catholic Church. That's a Catholic Church rule that's unlikely to change. Should a divorce(e) be able to sue the church about it? Sure. Will the suit fail? Sure. Same goes with same-sex marriages in a church.
I can't believe you are seriously arguing that we should completely trust the courts not to expand the literal text of the law the slightest bit. The same courts that pulled a fundamental right to abortion from no legislative or constitutional text whatsoever? The same courts that found a fundamental right to butt sex in the same place? You expect us to simply trust that the court would never do something so absurd as to simply invalidate legislation on the basis of penumbras of emanations?
Are you joking?
What Chase said. Forcing recognition of SSM will fracture society more than abortion has now.
You expect us to simply trust that the court would never do something so absurd as to simply invalidate legislation on the basis of penumbras of emanations?
Are you joking?
No. If I was joking, I would say, "what do you do with an elephant with three balls?"
Seriously, though, never look directly into a full penumbra with unshielded eyes.
Julius ranted: The social conservatives want to inflict pain ... on a group of people because of their sexuality. They blame everything-- absolutely everything-- that they think is wrong with this country on what people they have never met do in the privacy of their own home. Demonize the gays!!! Demonize the gays!!!
"Want to inflict pain"? "People they have never met"? "Demonize the gays"?
You can't be ignorant enough to believe this, so why say it?
I hope Boner wins.
Law Girl wrote: WHY is it that the gay lobby insists on using that specific term, rather than just fight for the concepts that could be protected under contract and corporate law principles!?
The answer can be inferred from the fourth paragraph of your post. It is evident that the use of the term "marriage" is unnecessary to the legal fulfillment of the relationship. Few are really stupid enough to believe otherwise.
Effrontery aside then, the objective of co-opting the term is the derogation of the institution, the religious tradition and, finally the religions themselves from which the institution of marriage derives.
I think DOMA needs to have a solid advocate, capable of making the best argument in its defense, such that it is.
I'm not certain what it would mean if the Supreme Court were to strike down the provisions that are being argued. I don't think that SCOTUS will issue a ruling that requires all states to recognize same sex marriage.
I agree with Chase that I'd rather have this issue settled at the polls, not in court.
I believe that marriage serves a public purpose, but it might be more appropriate to say that marriage served a public purpose. The core meaning of marriage has already been changed.
Francis Fukuyama: Prior to the Great Disruption, all Western societies had in place a complex series of formal and informal laws, rules, norms, and obligations to protect mothers and children by limiting the freedom of fathers to simply ditch one family and start another. Today many people have come to think of marriage as a kind of public celebration of a sexual and emotional union between two adults, which is why gay marriage has become a possibility in the United States and other developed countries.
I agree with Chase that I'd rather have this issue settled at the polls, not in court.
I think DOMA needs to have a solid advocate, capable of making the best argument in its defense.
Question for Brian Brown: Would he rather have Holder or Clement defending DOMA before the Supreme Court?
I don't know what to expect from Justice Kennedy, but as others have written, I suspect that it all comes down to him.
I'm not certain what it would mean if the Supreme Court were to strike down the provisions that are being argued. It's not possible for SCOTUS to issue a ruling that requires all states to recognize same sex marriage, is it?
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is it time to trash and demonize gay folks again already? how time flies! we're warned here of opening "pandora's box" but we've had seven years experience with legal same-sex coupling in massachusetts (as well as in other states and countries for varying periods of time) and i haven't noticed any outbreak of bestiality or polygamy or any of the other bogeymen trotted out every time this subject comes up.
straight folks are still marrying and procreating..or not..and gay folks are marrying and raising children..or not..and everyone is doing just fine, thank you. shame on boehner for his crass effort reassure the so-called social conservatives that the GOP is on 'their side'. this is not why i voted a straight republican ticket in the last two elections. i thought we had moved past the antics of the anita bryants and jerry falwells. sadly, i guess i was wrong.
`
Edutcher said:
Seem to remember a war imposing an end to the Peculiar Institution.
Wrong. Even after the war, slavery was not yet illegal.
Thirteenth Amendment. Voted on.
I am a fan of yours on Althouse . . . but . . .
Care to try again?
el polacko,
when I plant a seed and tell you it will be a full grown apple tree in 10 years, with a lot more fruit 10 years after that, are you the guy that comes by after seven years and says "hey, not really a real Apple tree, and not a lot of fruit."
Massachusetts is a testing ground, yes. But Massachusetts is where people who want to live liberal live. It's citizens already hate the Catholic Church, especially the Catholics. I would expect gay marriage to not have too many "problems" in San Francisco either.
But the issue is the imposition of same sex marriage and it's acceptance by parts of the country that choose to not want it. If you're suggesting that we have a moratorium on same sex marriage except in states where it's voted on, and then watch what happens for 30 plus years - a generation - I'm fine with that.
But forcing states by judicial fiat that don't want to recognize it to have to?
Hell No
The Constitution leaves it to states to regulate marriages.
In New Hampshire, a 13 year old girl can get married. If a 13 year old girl gets married in New Hampshire, the federal government will recognize her marriage as legal and valid and all that, despite the fact that such a marriage would not be allowed in another state.
Rules about the marriage of first cousins differ across the U.S., as well. To the best of my knowledge, first cousins who married in a state that allows such marriages would be considered married by a state that forbids such marriages.
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