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It hasn't been a good day for DOMA in oral arguments. Which means it has been a good day for the rest of us.

Justice Kagan slapped the law around pretty thoroughly, reading from a House of Representative report that flatly came out and said the law was intended "to express moral disapproval of homosexuality." [Republicans everwhere: Um guys, I don't think we're supposed to write that stuff down...]

So she asked Clement, defending the law, if there was any rational basis for the law. What followed should have been one of the best-prepared answers for Team Anti-Equality, because that was the single question most certain to get asked in oral arguments about DOMA. It should have been the best they have.

Clement's answer was hilarious.


You must enter an Intro for your Diary Entry between 300 and 1150 characters long (that's approximately 50-175 words without any html or formatting markup).

The government's interest, he explained, is making sure same-sex couples are treated equally regardless of location. He explained the sort of nightmare scenario that might happen otherwise: a gay member of the military might "resist transfer from West Point to Fort Sill because they’re going to lose their benefits."

That's right. The best "rational" defense of DOMA is that, since some parts of the country discriminate against homosexual couples, the government has to discriminate against them everywhere. In order to be fair.

I'm sure a more learned legal fan here will point out a more self-defeating argument that has been made before the high court, but this has to be near the top of the list. Because, of course, it is equally easy for the government to treat people fairly by ... simply not discriminating at all.

Rational basis review is the low bar to clear. If this is their best rational basis defense, DOMA is doomed.

And, honestly, same-sex marriage bans shouldn't last too much longer, although the Court won't reach that far on the back of this case. But the 10th Circuit Court's interstate adoption decision in Finstuen v. Crutcher ought to remind someone, eventually, that Article IV, Section 1 (the Full Faith and Credit Clause) still exists.

Sometimes, the slow bend of the arc of history plays catch-up.

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