A propos of what I was talking about last week regarding the need to re-organize and re-examine the way the law addresses relationships of dependency, the Department of Justice filed a legal brief asking for dismissal of a case in California challenging the constitutionality of DOMA. (Note: this is NOT the same suit as this one being brought by star litigator David Boies and former Solicitor General Ted Olson in Massachusetts which recently got a lot of press.)
I don’t think it’s necessary for me to take the brief apart, per se – you can read Dale Carpenter doing it quite well here. Suffice it to say in summary that this is the kind of brief where analogies to incest are freely made, where it is claimed that one of the main benefits of DOMA is that it saves the federal government money (which, of course, mass euthanasia of anyone over 50 years old would also do but that would not make it good policy), and crucially appears to make the claim that DOMA does not, in any way, discriminate on the basis of sexual orientation.
I shall spare you the legalese and say that what is more or less objectionable about this brief is that even if the Obama Administration has made a strategic decision not to push the gay marriage issue now – and I am not fond of strategy arguments but then I tend not to be too pragmatic about human rights – it did not need to go this far, in this brief, at this time, to kill this case.
Because the courts would be clogged with litigation if anyone who got an idea in her head that some law was unconstitutional could bring challenge in court, courts have developed procedural rules that demand that a plaintiff’s case satisfy certain standards before being heard. Two of these standards are at fairly strong issue in the case: jurisdiction and standing.
Jurisdiction addresses the question of whether some law, somewhere, authorizes the court to hear the question presented. Here, the case was originally brought in state court, and the government can therefore argue (as it does, in the brief) that the state court did not have jurisdiction to entertain a suit against the United States due to the principle of sovereign immunity – i.e. that no government may be tried in the courts of another government.
Standing addresses the question of whether the person bringing suit has actually suffered a harm as a result of the legislation they are challenging. Now, because nearly always you can identify some effect of legislation on your life, the courts demand that this injury be immediate and personal in nature in order to cut down on potential claimants. In this case, the plaintiffs have framed themselves as a couple who got married in California but are denied civil rights because they could not get that marriage recognized elsewhere should they choose to move. There is definitely a colourable argument that this injury is a bit too remote – that the couple would have to show exactly what they were being denied as a result of DOMA to sustain the case. – i.e. what federal benefits they were denied, etc. etc.
These arguments, either of which are sufficient to dispense of the case, do not really implicate the grander scheme of whether DOMA is (a) discriminatory; and (b) therefore constitutional. Of course, to a certain degree these procedural arguments are semantics too. Obviously it kind of sucks to tell gay people they’re “not suffering a legally cognizable injury” as a result of DOMA unless they basically have suffered discrimination.
But that’s a bit of a legal radical perspective. From the DOJ’s point of view, indeed from any well-heeled, went-to-all-the-right-schools, properly-indoctrinated American lawyer point of view, jurisdiction and standing are absolutely different questions than the merits of an issue. So the DOJ knew, perfectly well, that it could get away, with a straight face, saying that that it had only challenged the suit on the necessary procedural grounds and would leave the courts to decide the merits of the legislation.
But it didn’t.
There’s no reason for anyone but lawyers to care about this, but there are always several different ways to argue a question, and there is always the question of tone and force when you are putting something in front of a judge. For whatever reason, the DOJ thought it would go all-out, full-steam-ahead here. And that is where the insult lies.
Of course, disappointingly though perhaps understandably because of what’s going on in Iran, no one’s really covering this. And the liberal blogs are largely silent. And I don’t know what to make of that. Maybe it’s legalese blocking the way; maybe it’s that someone somewhere doesn’t want to criticize Obama or his Justice Department. But it is suspicious that these things fly under the radar. No one is saying this was the right time and context to have the Supreme Court review the issue. But it wasn’t the right time and context to mount an all-out assault on DOMA’s critics either.