Ten Republican U.S. Senators this week filed a brief with the 9th Circuit Court of Appeals in support of the federal Defense of Marriage Act.
On Monday, 10 GOP senators filed an amicus curiae brief in support of the law, including Senators Orrin Hatch of Utah, Saxby Chambliss of Georgia, Dan Coasts of Indiana, Thad Cochran and Roger Wicker of Mississippi, Mike Crapo of Idaho, Charles Grassley of Iowa, Lindsey Graham of South Carolina, Mitch McConnell of Kentucky and Richard Shelby of Alabama.
Hatch’s inclusion is significant because he chaired the Senate Judiciary Committee when DOMA was passed.
The senators stated that courts are not authorized to “strike down an otherwise constitutional law based on the belief that legislators individually, or the Congress as a whole, were motivated by ‘animus.’”
“Judicial ‘psychoanalysis’ of legislative motives, to use Justice Cardozo’s phrase, is a highly subjective exercise, which threatens needless friction between the branches. Scouring the congressional record for ‘sound-bites’ to divide and disparage the motives of individual legislators also chills the freedom of legislative speech that is the hallmark of robust democratic debate.”
The senators said that the law is the result of a significant government interest, specifically to clarify the federal definition of marriage.
This is the first time that Republicans from the upper chamber have moved to defend the federal ban on gay marriage recognition since the Obama administration said it would no longer defend Section 3, which it deemed an unconstitutional provision in the law.
The Senators’ belief that there is a legitimate government interest in DOMA is spelled out in the brief thus:
Whatever the merits of this novel theory in the abstract, it cannot invalidate Section 3 of DOMA. First, as discussed infra, Section 3 did not alter anything, but merely preserved the status quo with regard to the meaning of marriage in federal law. Second, DOMA in no way infringes on the rights ofstates to define marriage however they wish for state law purposes. If anything, it does the contrary through Section 2, which expressly guarantees the autonomy of states with regard to recognition or non-recognition of same-sex marriage.
Finally, it is not accurate to suggest that Congress could have, simply by doing nothing, been more “neutral” with regard to state decisions in defining marriage. Assuming that same-sex couples married and domiciled in Hawaii(for example) would have been entitled to some federal benefits, this would have required the vast majority of other states to subsidize marriages not recognized under their law. More importantly, it would raise the question of whether their own citizens who were married in Hawaii and returned home would be entitled to federal benefits. As discussed infra, how different courts in different states would answer this question would be difficult to predict, but it almost certainly would lead to instances of conflict between a particular court’s interpretation of federal law and the public policy of the state of domicile with regard to same-sex marriage.
The case in question is Golinski v. United States Office of Personnel Management, where Karen Golinski is suing over DOMA’s denial of spousal benefits.
U.S. District Judge Jeffrey White, San Francisco, ruling in February of this year, found that DOMA violated the equal protection rights of same-sex couples. He said that debate surrounding DOMA prior to it being enacted in 1996 included members of Congress calling homosexuality “immoral” and “unnatural,” among other morally charged words. This, White said, showed a level of bias that indicated DOMA was motivated, at least in part, based on personal ideas about private actions rather than any legitimate government concerns.
House Republicans have intervened in around 12 separate DOMA cases and are appealing this ruling, while the Obama administration has backed several suits seeking to overturn DOMA on Equal Protection grounds. In keeping with its advocacy, the Obama administration has sort an expedited en banc review of this case.