Skip to main content

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.

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.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site