In yesterday’s Voting Rights Act case, the Supreme Court treated Congress as if it were a mob of irrational idiots, and so disabled it from addressing the nasty and persisting practice of voter disenfranchisement. Today, when it struck down the Defense of Marriage Act, we got an example of where the court gets its ideas from. Here was a law that really was enacted by a mob of irrational idiots.
DOMA declares, in pertinent part, that the word “marriage,” wherever it appears in the U.S. Code, “means only a legal union between one man and one woman as husband and wife.” The rule applies indiscriminately across all federal laws, producing some very strange results. Federal ethics rules bar officials from participating in matters in which their spouses have a financial interest — but not if they’re same-sex spouses. It is a federal crime to assault, kidnap, or kill a member of the immediate family of a federal official in order to influence or retaliate against that official — but not if you do that to a same-sex spouse. Ditto Social Security, federal pensions, taxation of inheritances (which was the issue in today’s case), and over a thousand other provisions.
Justice Kennedy had no trouble recognizing this for what it is: a “bare desire to harm a politically unpopular group.” The statute lashes out at same-sex couples with no attention at all to the purposes of any of the underlying laws it affects. The constitution’s guarantee of equal protection was enacted with precisely that kind of law in mind. (Kennedy unnecessarily muddled this point with talk of federalism, which really had nothing to do with the case. Congress gets to define the terms of the U.S. code as long as it doesn’t unconstitutionally discriminate.)
Justice Antonin Scalia, dissenting, tried to think of some justifications for the law: “DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage.” What happens to the marriage of a couple who wed in New York and move to Alabama? But there are federal laws and regulations that already deal with those questions, which will still arise with underage marriages, cousin marriages, common-law marriages, and the like. Scalia doesn’t explain why same-sex marriage is any different.
But of course there is a difference — one that doesn’t have much weight now, but that felt terribly important in 1996, when the law was enacted. That was the unquestioned revulsion that many Americans felt toward gay people — revulsion that is now understood to be pretty nasty. That enabled the political calculus that was the real motive for the law. President Bill Clinton was facing what could be a tough reelection campaign. Republicans knew that the law would put Clinton in a difficult spot: either veto the law, and be branded as favoring same-sex marriage (which only a third of Americans then supported), or sign it and alienate his gay supporters. He chose the second option, and got reelected anyway. And so we were stuck with this ridiculous law. Congress wasn’t thinking about solving a policy problem at all. It just wanted to stick a pin in Clinton.
It’s a shame when Congress does this kind of thing, because the contempt that it deservedly engenders comes back to bite it when it tries to address a real problem, like voting rights.
Andrew Koppelman is the John Paul Stevens Professor of Law and a professor of political science at Northwestern University. His most recent book is The Tough Luck Constitution and the Assault on Health Care Reform.