The court battle over the Defense of Marriage Act and Proposition 8 officially got underway this week, as briefs for both cases were filed at the Supreme Court. The defense of both measures appears to hinge on the argument that gays are a politically powerful group that no longer requires aggressive court intervention to protect.
Super lawyer Paul Clement filed the DOMA brief on behalf of House Republicans, who are defending it after the Barack Obama administration refused.
Clement's core argument is that the political process is now moving so quickly that the issue is better settled there, reserving court "equal protection" rulings for the very limited categories where a disadvantaged group lacks political force. Leaving settlement to the political process will result in better policy and better buy-in when it is reached, he argued.
"In that process," Clement wrote, "there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus. And the democratic process allows compromise and way-stations, whereas constitutionalizing an issue yields a one-size-fits-all-solution that tends to harden the views of those who lose out at the courthouse, rather than the ballot box. In the final analysis, the democratic process is at work on this issue; there is no sound reason to constitutionalize it."
Clement notes that "gays and lesbians have substantial political power, which has grown exponentially with each election cycle. Nor do the other factors this Court has looked to support recognizing a new suspect class here."
At stake here is the "level of scrutiny" applied. Where very vulnerable minorities are involved, the Supreme Court has been much more willing to step in and create a "suspect class."
"Laws that disadvantage racial minorities are looked at more skeptically than laws that harm, say, people over 65," noted Garrett Epps at The Atlantic. "That's because race discrimination thrives by locking minorities out of political power — denying them the vote, for example — while old folk have both the ballot and leisure to use it. So if gays really are playing on an equal footing in politics now, it's not irrational to ask the courts to let them work out their goals in legislatures and at the polls."
Epps is a staunch defender of gay marriage, and does not find the argument convincing, but he grants that it does carry some force.
Others are less generous. At the Center for American Progress, Ian Millhiser analogized the argument to the state of racial equality in 1967, writing a hypothetical brief for that era that borrows from the logic in Clement's brief:
“Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.”
Epps thinks the argument has more force than Millhiser grants. "Gay rights and gay politics have had a pretty good four years," Epps conceded.
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at [email protected].