This is a column about Robert Byrd, Bill Clinton, Anthony Kennedy, and Elena Kagan. But it’s mostly about gay marriage and the legal challenge to the Defense of Marriage Act, an anti-gay law signed by Clinton as president and likely to come before Kagan as the next Supreme Court justice.
In his eulogy for Byrd, Clinton excused the longtime West Virginia senator’s membership in the Ku Klux Klan in the 1930s as a politically motivated campaign decision. There are no perfect people, Clinton said, certainly no perfect politicians.
Clinton spoke from personal experience with the ethical lapses that can be induced by political ambition. With the 1996 presidential election looming, Clinton twice signed into law politically treacherous measures sent to him by the Republican-controlled Congress.
One of the bills, the Antiterrorism and Effective Death Penalty Act, cut back as far as Congress could on the rights of death row inmates and other prisoners to use federal habeas corpus to challenge the constitutionality of state court convictions or sentences. The other, the Defense of Marriage Act, did everything Congress could to stop what was then only the potential recognition of marriage rights for same-sex couples.
Clinton had to know of the legal and policy doubts attending both measures. But he must also have feared that if he vetoed either bill, a second term in the White House could fall victim to Republican attack ads depicting him as against capital punishment or against “traditional marriage.”
Coincidentally, only a few months before Clinton signed DOMA, the Supreme Court had its own encounter with an anti-gay law: a Colorado initiative passed in 1992 that barred either the state or local governments from passing laws to protect gays and lesbians from discrimination. The court ruled the measure unconstitutional in a 6-3 decision written by the Republican-appointed justice, Anthony Kennedy.
The law had no “rational relationship to legitimate state interests,” Kennedy wrote in Romer v. Evans. The only reason for its enactment was “animus” toward gays. “It is not within our constitutional tradition to enact laws of this sort," he said.
Seven years later, Kennedy wrote a second Supreme Court decision upholding gay rights. In Lawrence v. Texas, the court invalidated anti-sodomy laws on the ground that, just like the Colorado initiative, they had no rational explanation other than “moral disapproval” of homosexuality.
A few months later, the Supreme Judicial Court of Massachusetts cited Lawrence in making the Bay State the first in the nation to recognize marital rights for gay men and lesbians. Since then, six other states and the District of Columbia have followed suit either by judicial decision or legislative enactment. But in two of those states, California and Maine, voters approved ballot measures to take away the newly recognized marriage rights for gays.
With gay marriage now a reality, DOMA’s restrictions have started to bite. One part of the law provides that no state is required to recognize gay marriages entered into in another state. The other part, section 3, defines marriage for purposes of federal law as “one man and one woman” and thus denies same-sex couples any marriage-based benefits under federal law.
There are more than 1,100 of them, ranging from the preferential tax treatment for joint filers to spousal health, retirement, and survivor benefits for federal employees. In passing the law back in 1996, members of Congress said gay marriage would be bad for children and bad for procreation itself. But Rep. Henry Hyde, R-Ill., was perhaps the most honest of the lawmakers when he said simply that the law embodied the prevailing “moral disapproval of homosexuality.”
The Massachusetts-based Gay and Lesbian Advocates and Defenders (GLAD) assembled a lawsuit to challenge DOMA filed on behalf of legally married gay men and lesbians who were suffering concrete, financial harms because of the law: higher taxes or reduced health, retirement, or survivor benefits. In a 39-page decision this week [July 8], U.S. District Court Judge Joseph Tauro ruled that the law “violates equal protection principles.”
Tauro, appointed long ago by a Republican president, Richard M. Nixon, cited Romer and Lawrence as his legal authority for his decision to strike down a law that he said had no believable justification other than to penalize legally married same-sex couples. “Irrational prejudice,” the judge wrote in Gill v. Office of Personnel Management, “plainly never constitutes a legitimate state interest.”
Experts disagree about whether Tauro’s ruling, and a like decision in a companion case brought by the state of Massachusetts itself, will stand up on appeal. But it is certainly headed toward the Supreme Court. Kagan, a gay rights supporter in a previous life as Harvard Law School dean, is all but certain to win Senate confirmation within the next month to join the court as President Obama’s second appointee.
In her confirmation hearing, Kagan stressed the limited role that courts play in the U.S. constitutional system and pledged to be a “modest” justice. But she also said that courts have an essential role to play in fulfilling the goal enshrined in the Constitution’s preamble “to secure the blessings of liberty to ourselves and our posterity.” In a world of imperfect politicians, judicial modesty may be inadequate to the task.