miércoles, 28 de julio de 2010

Matrimonio entre personas de mismo sexo: Argentina desde el New York Times

The New York Times
July 27, 2010

In Latin America, a Harbinger of Women's Rights

With a historic vote this month allowing gay couples to marry and adopt children, Argentina joined a vanguard of nations — nine, to be precise — granting gays and lesbians these rights. It’s a stunning development on a continent where not long ago such a bold measure would have been unthinkable.

Only the legalization of abortion anywhere in Latin America would be more momentous.

Incredibly, in this day and age, abortion is legal in only one nation in Latin America, Cuba. Five countries — Chile, El Salvador, Honduras, Nicaragua and the Dominican Republic — ban it under all circumstances, even when the mother’s life is in danger. A law making abortion legal in Mexico City is under attack by theRoman Catholic Church. But abortion is not the only women’s rights issue in Latin America. Although many governments in the region describe themselves as progressive, the daily lives of millions of women in Latin America remain mired in poverty, male dominance and discrimination because of lax enforcement of social reforms and legal measures.

Still, Argentina’s vote to allow same-sex weddings is nothing short of a social revolution, a possible sign that perhaps the campaign for women’s rights cannot be too far behind.

Argentina’s recent turbulent past and brutal oppression and persecution of gays and lesbians hardly foreshadowed the Patagonian nation’s new global status as a champion for them. Decades ago during the “dirty war,” a state-sponsored campaign of terror against leftists after the coup of March 1976, gay bars in Buenos Aires were closed, and more than a thousand gay men were persecuted, arrested, kidnapped, tortured and killed. The stories of the hundreds of thousands of “disappeared” — gays and straights — haunt the country even today.

Outside cosmopolitan Buenos Aires, this is a region where homosexuality is still taboo, generally seen as a mortal sin, an abomination, a cruel joke and an accepted reason for social ostracism. It’s a region where slurs for gays and lesbians are among the most hate-filled words you can say about a man or woman, and where boys with what are perceived to be effeminate mannerisms are condemned to mocking and isolation.

Against that background, the advance of gays in Argentina may be seen as paving the way for other formerly politically repressive nations, like neighboring Chile.

For now, alone with Canada in the Americas, Argentina has joined a handful of European nations, including Spain, Portugal, Belgium and the Netherlands. It’s notable that three heavily Roman Catholic countries — Argentina, Spain and Portugal — defied religion and social tradition to take on this discomfiting and contentious issue, seen by some in the West as the human rights battle of our times.

The Argentine law has notable distinctions: it passed by a narrow margin and, as of now, applies to Argentine citizens only. Foreign gays and lesbians planning their weddings in Argentina are out of luck. More significant, the law overcame bitter opposition from the Roman Catholic, Mormon and evangelical churches, to which the majority of the population belong.

It is uncertain whether other nations in the hemisphere will follow suit. Even Brazil, known for its tolerance of different lifestyles, is reluctant. President Luiz Inácio Lula da Silva of Brazil supports the legalization of civil unions, but legislative measures have failed to pass.

Mexico City was until now the first jurisdiction in Latin America to allow gays and lesbians to marry and adopt children, a law adopted in December 2009. Though many activists there celebrated, few people believe that the city’s liberal tendencies will spread to the more traditional states of overwhelmingly Catholic Mexico.

In Chile, the government plans to propose limited civil unions but has no plans to go further. Uruguay and Colombia have civil unions, but gay marriage is not on the table. The majority of Central American countries are dead set against gay rights, except possibly for Costa Rica, which is considering some sort of civil guarantees.

Most interesting, perhaps, is Cuba. As books and films have recorded, gays and lesbians were viciously persecuted in the first decades of the Castro revolution. Mass arrests, imprisonment in work and re-education camps, job discrimination, murders and deportations were common in the 1960s, ’70s and ’80s.

Yet today, gays and lesbians can march and speak openly, thanks in large part to the daughter of President Raúl Castro, Mariela Castro, 47, head of Cuba’s National Center for Sexual Education. She has been an aggressive supporter of rights for gays, lesbians, bisexuals and the transgendered.

“For me, sexual identity and orientation is a human right,” she told the German magazine Der Spiegel in an interview this month. She and other activists, with the tacit backing of her father’s government, have softened attitudes toward gays. Ms. Castro recently offered up a bill to legalize gay partnerships. She had her father’s support, she said. But she withdrew the proposal under fire from the Catholic Church and some government bodies.

In the United States, voters in California and other states have banned same-sex marriages. Only the District of Columbia and five states, four of them in New England (the fifth is Iowa), have legalized gay marriages.

With that in mind, Evan Wolfson, the executive director of Freedom to Marry, a gay lobby, said, “Key to the vote in Argentina’s human rights achievement was strong leadership from legislators and the president. It is time we see more of our own elected officials standing up for the Constitution and all families here in the United States. America should lead, not lag, when it comes to treating everyone equally under the law.”

President Barack Obama has moved to lift the military’s “don’t ask, don’t tell” policy, which has driven thousands of gays and lesbians from the armed forces. The president has enlisted the support of the top brass, and it does seem likely that eventually the military will end the discriminatory policy.

While same-sex marriage is one of the hottest issues of the U.S. culture wars, the president and the overwhelming majority of politicians step gingerly around it. Some, like the president, support civil unions but not gay marriage. Though some surveys show that a thin majority of people in the United States support same-sex marriage, the issue — like abortion — ignites deep passions and, like abortion, will eventually land in the U.S. Supreme Court.

For this summer, U.S. gays and their supporters take comfort in “The Kids Are All Right,” the first Hollywood mainstream movie to portray a lesbian couple with kids — a modern American family.

miércoles, 21 de julio de 2010

Baltazar Garzon después de visitar Argentina

El País

ENTREVISTA: BALTASAR GARZÓN Asesor especial de la Fiscalía en la Corte Penal Internacional

"Mi intención es recuperar mi puesto"

GINÉS DONAIRE - Torres - 21/07/2010

El juez Baltasar Garzón hace un paréntesis en su estancia en la Corte Penal Internacional de La Haya para dirigir un año más los cursos de verano que la Universidad de Jaén hace en su pueblo natal, Torres, un municipio de 1.700 habitantes de la comarca de Sierra Mágina. Antes de iniciar la jornada accede a hablar con EL PAÍS, con la única condición de no hurgar ensu procesamiento por el Supremo. Con la compañía de un café con hielo muy cargado, el magistrado no esquiva finalmente ninguno de los temas.

Pregunta. Hace ya cinco años que dirige estos cursos. ¿Por qué a un juez le interesa debatir sobre temas tan diversos como la violencia de género, el cambio climático, la gestión sanitaria o la reforma del régimen local? ¿Se refugia en ellos para evadirse de sus problemas en la judicatura?

Respuesta. Son los temas que a mí me preocupan y que, de alguna forma, preocupan también a la sociedad. Por ejemplo, a la violencia de género yo le dedico mucho tiempo desde hace bastante, y ya hice un curso en la Complutense hace unos años. Creo que es bueno traer a colación temas sobre los que la sociedad necesita reflexionar y estar al tanto sobre lo que está sucediendo.

P. Acaba de llegar de Argentina, donde ha sido homenajeado por asociaciones de derechos humanos. Allí dijo que su vida cambió cuando entraron en su despacho las madres y abuelas de la Plaza de Mayo. ¿Tanto le marcó este caso?

R. Sí. Yo había tenido contacto con víctimas en la Audiencia Nacional, pero no de forma tan brutal como los crímenes acontecidos durante la dictadura en Argentina. El esfuerzo y coraje de las abuelas y madres de Plaza de Mayo se inició en el mismo momento de 1976 y tras las primeras desapariciones. Cuando yo las vi con pañuelos blancos, y lo único que pedían era que se les escuchara, eso me acercó a una realidad tan terrible que muchas veces resulta indiferente cómo son los crímenes contra la Humanidad.

P. ¿Puede un país desterrar la memoria histórica y el olvido?

R. Es difícil y, además, es una equivocación. El olvido, como el perdón o la memoria, corresponde al patrimonio de cada uno. Pero los olvidos oficiales son malos consejeros y a lo largo de la historia se ha comprobado. Las heridas, para que sanen, y antes de ser suturadas, tienen que ser limpiadas. Y no lo digo ahora en relación con los acontecimientos que pueden estar pasando en mi vida.

P. Usted ha sido procesado por investigar los crímenes del franquismo. ¿Se arrepiente de algo?

R. En la vida siempre hay algo de lo que arrepentirse, pero hay que sacar enseñanzas positivas y continuar adelante. Pero si la pregunta se refiere a mis investigaciones sobre los crímenes del franquismo, en general no puedo decir que me arrepienta porque las decisiones son tomadas consciente y reflexivamente. Es la interpretación de las normas jurídicas nacionales e internacionales las que te llevan a tomar esa decisión; puede haber opiniones discrepantes, pero no es cuestión de arrepentimiento, sino de aplicar las normas que corresponden.

P. Se ha quejado de las restricciones puestas en España a la jurisdicción penal universal.

R. Sí, es cierto. Es una reflexión sobre el retroceso que se está produciendo en muchos países, y entre ellos España, en torno a los casos de justicia penal universal. No tenemos nadie la varita mágica de cómo mejorar o adelantar los cauces de la justicia universal. Podemos analizar lo que ya hemos hecho, por ejemplo en Chile y Argentina, o ahora Guatemala, Ruanda, El Sáhara, Tíbet. Creo que es necesario continuar esa investigación porque no hay una respuesta de esos países ante crímenes contra la Humanidad, y no tenemos el derecho a no hacerlo porque es una obligación y, desde luego, los casos que ya están iniciados no pueden volverse atrás. Si así se entiende, yo lo respetaré, pero eso no quiere decir que la ley que ha salido nueva en España sobre la justicia universal me agrade. Tendremos que hacer como ha hecho el Defensor del Pueblo, interpretar que es una acción proactiva en los casos de justicia universal y, por tanto, interpretar esa norma lo más beneficiosa posible para las víctimas.

P. ¿Qué supuso para la justicia universal la detención de Pinochet en 1998?

R. Fue un impulso fundamental para los casos de justicia universal y, sobre todo, fue un mensaje contundente contra la impunidad, que es una herencia negativa de la sociedad y va de la mano siempre de la corrupción.

P. Usted trabaja ahora como asesor especial de la Fiscalía en la Corte Penal Internacional de La Haya. Alguien lo ha comparado en estos cursos como un exilio forzoso. ¿Cómo se siente allí?

R. Yo he aprendido en mi vida a hacer lo que corresponde al cargo que ocupas, y hacerlo como si fuese lo único que te queda por hacer en la vida. Siempre he tenido una profesión al trabajo muy clara, enseñada desde la infancia por mis padres, y es lo que estoy haciendo en La Haya. Es algo diferente, no es el día a día de las investigaciones de la Audiencia Nacional, sino que se trata de unir varios criterios diferentes de analistas, de investigadores, en lugares muy recónditos y complicados del planeta donde el Estado de derecho prácticamente es inexistente, y armar los casos para que después la Corte Penal Internacional pueda aceptar las peticiones que la Fiscalía hace.

P. ¿Cree que volverá a la Audiencia Nacional?

R. Estoy suspendido de funciones y una vez que se produzca la finalización del proceso podremos hablar. Obviamente, mi intención, si la causa concluye favorable a mí, es recuperar el puesto de la Audiencia Nacional sin perjuicio de la decisión que uno tome en su vida posteriormente. Pero estoy tranquilo y seguro de que al final se impondrá lo que corresponda en justicia.

P. ¿Se ha sentido víctima de una campaña de acoso mediática?

R. Que ha habido una campaña de determinados medios dirigida contra mí es evidente. Incluso en mi pueblo, que sí estuvo a la altura de la ética colectiva al margen de ideologías, se ha acosado a gentes tratando de sacar donde no había e inventar historias.

P. ¿Y los políticos?

R. Ha habido algunos que no han estado a la altura, no en mi caso sino con carácter general. Es verdad que alguna vez algún político ha dicho alguna barbaridad, sobre la lucha contra el terrorismo de ETA, que achaco más al desconocimiento (lo cual es grave) que a mala intención.

P. ¿Se siente hoy más optimista sobre el final de ETA? ¿Cree que se están dando pasos en la dirección adecuada?

R. Sí, sin lugar a dudas. Creo que la política que se está haciendo es la correcta, hay una coherencia en la acción política frente al terrorismo de todas las fuerzas democráticas y así debería de ser en otros ámbitos de la política. En el policial y judicial hemos estado haciendo lo que se debía, la acción de jueces y fiscales está siendo contundente y creo que vamos en el buen camino. Ahora bien, nunca se puede decir 'hemos terminado' o 'con esto estamos ganando la partida', porque basta que haya un atentado para que todo ese discurso se venga abajo.

P. Uno de los últimos respaldos ha sido el de la Fundación Saramago, que ha pedido para usted el Premio Nobel de la Paz.

R. Bueno, a mí lo que me apena es la pérdida de Saramago como amigo y como escritor. En sus últimos días y escritos tuvo una atención muy especial para mí y para mi situación y eso me aproximó mucho a él y se lo agradecí.

sábado, 10 de julio de 2010

Matrimonio entre personas de mismo sexo I

Esta semana un Juez Federal de Massachusetts declaró en dos fallos inconstitucional la Ley de Defensa del Matrimonio (DOMA), por primera vez, sobre la base de argumentos relacionados con la razonabilidad de la regulación en líneas similares a las que comparto y que presenté en la Cámara de Diputados en mi post del 28 de noviembre de 2009 (ver acá).

Un excelente comentario sobre los dos casos en el Blog de Jack Balkin (Balkinization) y que reproduzco acá:



Thursday, July 08, 2010

Be Careful What You Wish For Department: Federal District Court Strikes Down DOMA

Jack Balkin

Today Judge Joseph Tauro in the federal district court in Massachusetts struck down section 3 of the Defense of Marriage Act (DOMA) in two opinions, Gill v. Office of Personnel Management, and Massachusetts v. HHS. Section 3 of DOMA requires that marriage, for purposes of federal benefits programs, must be defined as the union of one man and one woman, so that same sex marriages cannot take advantage of any federal benefits programs. Gill holds that this violates the equal protection component of the Fifth Amendment because there is no rational basis for denying same sex couples already recognized in a particular state from receiving federal benefits. Massachusetts v. HHS holds that federal programs that deny benefits to married same sex couples violate the Tenth Amendment because they intrude into an function exclusively reserved to states, namely the definition and regulation of marriage. It also holds that selective funding of only opposite sex couples is not within the federal spending power under the General Welfare Clause because it places an unconstitutional condition on the receipt of federal funds.

I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not-- and I do not-- Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge-- who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are--is in a very different position than I am.

Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment-- much beloved by conservatives-- to strike down another law much beloved by conservatives--DOMA. There is a kind of clever, "gotcha" element to this logic. It is as if he's saying: "You want the Tenth Amendment? I'll give you the Tenth Amendment!" But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness-- which is certain to twist both liberal and conservative commentators in knots-- I do not support the logic.

The arguments of Judge Tauro's two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government's taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?

(In one of the wildest parts of the Massachusetts v. HHS opinion, Judge Tauro resurrects Chief Justice Rehnquist's "traditional governmental functions" approach from National League of Cities v. Usery, which was specifically overturned in 1985 in Garcia v. San Antonio Metropolitan Transportation Company on the grounds that it was completely unworkable. The existence of Supreme Court authority, however, does not stop Judge Tauro; he simply notes that a First Circuit decision predating Garcia that used the concept to uphold the federal child support recovery law is still on the books, and who knows, maybe the Supreme Court will change its mind!)

Moreover, while insisting that marriage is a distinctly state prerogative, Judge Tauro argues that the federal constitution makes it irrational for the federal government to discriminate between same and opposite sex couples. But if so then it follows that it would also be irrational for a state government to discriminate, because the test under the Fifth Amendment equal protection component and the Fourteenth Amendment's Equal Protection Clause (which applies to the states) is the same. Thus Judge Tauro is saying that marriage is none of the federal government's business, except, of course, when a federal court thinks otherwise. He is, in essence, laying the groundwork for an equal protection challenge to state marriage laws in virtually every state. This is not a result that is particularly respectful of state prerogatives!

Finally, Judge Tauro's attempt to limit federal power through the Tenth Amendment so that it does not interfere with state prerogatives might delight members of the contemporary Tea Party movement (at least if it wasn't aimed at DOMA), but it should give most Americans pause. The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

There is much to admire in Judge Tauro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.



Friday, July 09, 2010

More on Gill v. OPM and the Equal Protection Argument against DOMA

Jack Balkin

Andy correctly points out that the equal protection argument in Gill v. OPM and the unconstitutional conditions argument in Mass v. HHS rest on a very different legal footing than the Tenth Amendment argument. Although I strongly object to the Tenth Amendment argument, what I said about the equal protection argument in my previous post is that Judge Tauro was too far ahead of the country, that his logic implicates all state marriage statutes, not just DOMA, and that as a result he will get reversed, if not by the First Circuit, then almost certainly by the Supreme Court if the issue comes before them in the next two or three years. I believe that federal and state laws that discriminate against same-sex couples violate equal protection of the laws. But I have no faith that the Supreme Court will agree with me for many years.

Even so, I shouldn't have said, as I did at the very end of my previous post, that Judge Tauro's equal protection holding should be overturned, as if this was a statement about the kind of law I want to live under as a citizen. Rather, what I should have said is that he is deciding this issue at the wrong time and in the wrong way, and a court following existing law will almost certainly overturn it, with bad consequences to follow.

I would rate the odds of the current Supreme Court conservative majority holding section 3 of DOMA unconstitutional under the Equal Protection Clause as very small indeed, especially when only a handful of states currently recognize same-sex marriage. In my view, the fight for same sex marriage needs to occur in the states for the time being, until there is a critical mass in the states. Only then will it make sense to mount federal challenges to state laws that deny recognition to same-sex marriages. The familiar analogy is to how the Supreme Court eventually took on the case of Loving v. Virginia. Loving was decided in 1967 after almost all states outside the South allowed blacks and whites to marry. (The Supreme Court ducked the issue in 1955 in Naim v. Naim when it was presented to them; at that point far fewer states had repealed their prohibitions, and most Americans disapproved of interracial marriage.)

This set of considerations, of course, is similar to the much debated question whether Theodore Olsen and David Boies should be trying to overturn Proposition 8 in federal court, producing an opinion with potentially nationwide reach. Right now, it looks as if they may succeed at the district court level. But it's a dangerous game to play. Suppose the Ninth Circuit affirms--which there is no guarantee it will--and suppose it affirms again en banc. The current Supreme Court appears to make it a point of pride to reverse the Ninth Circuit whenever it can.

Advocates of gay rights need at least one more vote on the Supreme Court to be confident of bringing such a case before the Supremes, or they need about ten more years, or both. Perhaps this litigation will continue that long, or perhaps one or more conservative Justices will retire in the interim, or perhaps public attitudes will shift dramatically toward same-sex marriage and many more states than the current handful will adopt same-sex marriage. All this could make a difference. Perhaps Justice Kennedy will provide the fifth vote and provide the majority opinion, thus creating the gay rights trifecta of Romer in 1996, Lawrence in 2003, and Gill in 2012.

Even so, I remain skeptical of the present possibilities for success. Whether one likes it or not, we are not in the same situation as Loving v. Virginia in 1967, when only 17 states still banned interracial marriage; or Lawrence v. Texas in 2003, when only 13 states still criminalized same-sex sodomy. Bringing a challenge to same-sex marriage to federal court in 2010 is a little like trying to get the federal courts to decide Lawrence in 1972 or Loving in 1948, immediately after California's decision in Perez v. Sharp. It's bold, it's courageous, it's daring, and its probably doomed. Thus, Judge Tauro will have succeeded in a temporary victory for gay rights at the cost of making bad law at the appellate level that binds him--and other district courts--for many years.

Perhaps, though, following Andy's post, there's another way. Suppose we can thread the needle: come up with a way of striking down section 3 of DOMA under the equal protection clause that doesn't also simultaneously require the Supreme Court to strike down all state marriage statutes that don't recognize same-sex couples.

So let me explore the court's equal protection arguments, working under the assumptions of current law-- that gays and lesbians are not a suspect class, and that there is no federal constitutional right to same-sex marriage.

Under those assumptions, can we say that section 3 of DOMA violates the equal protection clause because it discriminates against same-sex couples?

In Gill the federal government made the remarkable admission that it would not rely on four standard arguments for treating same-sex couples differently from opposite-sex couples-- four arguments that have been used in the past by state courts rejecting constitutional challenges. Thus, the federal government did not offer as justifications for DOMA: encouraging responsible procreation, protecting traditional heterosexual marriage, defending traditional morality, and preserving scare resources.

The fact that the federal government has officially distanced itself from these often used rationales--and does not believe they provide a rational basis for DOMA--is an important and noteworthy event. It will prove quite important later on in future litigation over federal rights. But remember, for purposes of this discussion, we are not assuming a general federal right to same-sex marriage.

Of course, even though the federal government said it would not rely on these justifications, Judge Tauro went ahead and said they were all irrational anyway. He is correct; they are not rational justifications for denying gays and lesbians the right to marry. The difficulty is that following this dicta would also strike down all state marriage laws under the equal protection clause.

What the federal government actually did argue was that section 3 of DOMA had a rational basis on other grounds. It offered two. The first was that Congress wanted to preserve the status quo pending the resolution of a socially contentious issue within the various states, and the second is that it wanted to proceed one step at a time in incorporating same-sex marriage rights given a quickly changing political landscape.

Judge Tauro argued that these interests weren't rational. First, he argued that Congress has no authority to regulate marriage because "the subject of domestic relations is the exclusive province of the states." This is not a promising start, for reasons I explained in my last post: the federal government has been involved in regulating families since Reconstruction.

Judge Tauro also denied that "Congress has [an] interest in a uniform definition of marriage for purposes of defining federal rights, benefits, and privileges." But why wouldn't Congress have a legitimate interest in defining its own federal rights, benefits and privileges? It's the federal government's money after all, and why wouldn't they care about how it was spent? The fact that the federal government has generally followed state definitions of marriage in the past does not prevent the federal government from ever claiming an interest in the future about how federal benefits for married couples are doled out. Suppose for example, that the federal government sought to treat cohabiting couples as married for federal tax purposes even though most states did not for purposes of their own state income tax, or suppose the federal government refused to treat cohabiting couples as married for federal income tax purposes even though some states did for purposes of their tax laws. Would this violate the Constitution because it lacked a rational basis? I'm not sure that it would. Does Judge Tauro's reasoning commit us to that position?

Besides, the federal government's best argument is not simply that it wants a uniform definition of marriage *in all cases,* but that it wants to preserve the status quo on this particular issue-- same sex marriage.

Now how you describe the status quo is itself controversial. Is the status quo only providing benefits to opposite sex couples, or is the status quo simply following state law whatever it might be? Judge Tauro argues that it's the latter, and not the former. But if you take the federal government's argument seriously, it is arguing that the controversy in question concerns the adoption of same-sex marriage, and therefore the status quo--before the controversy began--is providing benefits only to opposite-sex couples. Judge Tauro has not really explained why it is irrational for the federal government to call this position the status quo if the federal government is responding to a controversy around this particular change in marital status laws.

Judge Tauro's strongest argument, it seems to me, is that the federal government has generally followed state definitions of marriage in handing out federal benefits, and it has tracked state changes in marriage laws. It simply has asked whether a couple is married under relevant state law. For example, even when the issue of interracial marriage was hotly contested, and only some states permitted it, the federal government recognized those marriages as eligible for federal benefits. Moreover, as Judge Tauro points out, states have different ages at which people can be married; New Hampshire allows a 13 year old female and a fourteen year old male to get married with their parents consent, and no other state does. He might also have mentioned that states have different rules for how close a relation a person can marry (first cousins, second cousins, etc.) The fact that some states might object morally to the rules in other states has not prevented the federal government from recognizing these marriages. (Of course, there hasn't been a big controversy about it either.)

In this case, however, the federal government is singling out one set of marriages-- same-sex marriages-- and refusing to follow whatever definitions a state adopts for purposes of awarding federal benefits. This variance from customary practice, Judge Tauro argues, shows that the federal government has no rational justification for section 3 of DOMA. In the alternative, as Andy argues, it shows evidence of an invidious purpose to harm an unpopular group.

In my view, this is the best version of an equal protection argument, under current law. But the problem with arguments from tradition is that they don't show that deviations from tradition are irrational. They merely show that they aren't traditional.

Suppose the federal government says that the government is facing a political controversy different from the one it faced with interracial marriage, and closer to the controversy that it faced (and still faces) over abortion. (Judge Tauro might disagree, but does he think that federal judges know how to assess political situations better than actual politicians?) Congress reasons as follows: The decision to give federal benefits to interracial couples met with fairly little resistance in the early twentieth century, but that is not true in the case of same-sex marriage, and the latter case is far closer to what happened with abortion. In the case of abortion, the federal government ultimately decided not to use any federal money to subsidize abortions, even though the courts had recently recognized that there was a federal constitutional right to abortion! The Supreme Court upheld this policy in Harris v. McCrae. Would it be irrational for the federal government to offer abortion as a better analogy to explain why it wanted to stay out of the controversy regarding same-sex marriage? (After all, the same social movements opposing abortion are also opposing gay rights.)

In addition, why couldn't the government say that it is proceeding one step at a time-- a familiar argument in economic equal protection cases. Given the intense controversy surrounding same-sex marriage, the federal government wants to stay out of the question of recognition, which is highly controversial, until it knows more about how same-sex marriage actually works in practice. When a sufficient number of states have recognized same-sex marriage, and a sufficiently long track record, Congress will then revisit the question of federal benefits for same-sex couples. If there is no fundamental right or suspect classification involved, why is this policy irrational?

Here is another analogy: Suppose that a huge controversy develops, which didn't exist before, around New Hampshire's child marriage statute, and the age that people can get married. Suppose that in some states constituents have traditional or religious reasons to prefer that families arrange marriages for their minor children, believing that it will lead to healthier, more stable marriages in the long run, and they successfully lobby to lower the age of marriage to 12 with parental consent. Suppose further that a huge controversy develops about whether this is a good or a bad thing, and suppose further that the controversy is surrounded with allegations of religious and ethnic intolerance. As a result, Congress withdraws recognition of federal benefits to marriages of people under the age of 16. Would this statute violate the right to marry? Would it lack a rational basis?

Now the problem we are facing in each of these examples is that we are assuming, under existing law, that gays and lesbians are not a suspect class and that there is no general federal right for same-sex couples to marry. Moreover, we are asking whether there is any rational basis on any conceivable set of facts that Congress might have contemplated when it withdrew federal benefits from certain marriages. So you see the problem. If you start from these premises, there may well be a rational basis for section 3 of DOMA.

Or maybe not. Suppose we can show that the real reason for DOMA was that a lot of people in the Congress that passed DOMA hated or feared gay people and wanted to harm them. Then under Romer v. Evans, DOMA is unconstitutional under the equal protection clause because it was enacted out of a bare desire to harm a politically unpopular group. The problem is that many of the people who voted for DOMA were not homophobes. They did not fear gays; they feared their constituents. They just wanted to get reelected, and they wanted to remove the issue of gay marriage from the legislative agenda and kick it down the road for a decade or so. That certainly describes Bill Clinton and many other liberal and moderate Democrats. How does Romer v. Evans apply to that kind of statute?

Finally, there is one other situation where withdrawing federal benefits might violate the Constitution. Suppose that the federal government takes the position that if Massachusetts participates in any federal program using federal money, and if any of the money in any of the programs goes to same-sex couples, the State will lose all federal funding for all federal programs. In that case there is a much stronger argument that Congress is not trying to preserve the status quo but is actively trying to strong arm Massachusetts into harming gay and lesbian couples. But as I understand the facts of this case, DOMA does not work in this way. Rather, DOMA does not give Massachusetts the discretion to use the federal component of federal benefits programs like Medicaid to assist same-sex couples.

Posted 2:15 PM by JB [link]


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