Boehner And Clement’s Brief to the Court On DOMA Is An Anti-Gay Masterpiece

This is the week that John Boehner’s bizarre personal crusade to use the House to continue defending DOMA in court despite another office of the same government, the Department of Justice, declaring it unconstitutional, comes to fruition. Paul Clement, the super-expensive lawyer who left his original law firm just to be able to take on this case, is presenting a pretty familiar argument in the case brought by Edith Windsor for paying over $350,000 in estate taxes that she would have been exempt from had she and her wife’s marriage been recognized by the federal government. He’s filed a series of motions in an attempt to have her case — which the Attorney General of New York recently joined — dismissed by the court, and in doing so is trying to cash in on every anti-gay argument every lawyer before him has used. The document itself is called the “Memorandum of Law in Support of Intervenor-Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment.” (Click to read the PDF.)

(If you’d like to be extra prepared, read the “Defendant’s Brief in Opposition of Motion to Dismiss,” which is our side’s view on these issues, a good primer, and extremely validating.)

For anyone who’s followed, say, the Prop 8 trial, all of Clement’s arguments will be a deja-vu experience. Mostly, he maintains that for various reasons that are unabashedly based in religious beliefs and the cultural values of the Christian community, gay people shouldn’t or don’t deserve to be married — but even if they did, it wouldn’t matter that much if they didn’t get to, because at this point they have So Many Other Rights! Specifically, he says:

+ Same-sex marriage isn’t an issue worthy of the court’s heightened scrutiny.

Plaintiff is not entitled to judgment as a matter of law. Her claim to summary judgment fails at the threshold: Contrary to her arguments, no form of heightened scrutiny applies to Section 3 of the Defense of Marriage Act (“DOMA”). Pub. L. No. 104-199, § 3, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7. Rather, DOMA is subject only to rational basis review. And (as made clear in the memorandum of law simultaneously filed by the United States House of Representatives’ Bipartisan Legal Advisory Group (the “House”) in support of its motion to dismiss), DOMA easily passes the rational basis test and does not violate the Equal Protection component of the Fifth Amendment.

This comes off as bluffing at best and delusional at worst, given the various people and institutions in the judicial branch who have already weighed in on this.

in the brief they filed FridayObama’s DOJ lawyers provided an extensive argument for why sexual orientation should be protected as a suspect class, and so trigger heightened judicial scrutiny. And DOJ lawyers also argued that, under heightened judicial scrutiny, Section 3 of DOMA is unconstitutional. The DOJ made this same argument in their February letter to Congress (the letter in which they told Congress they would stop defending DOMA), but they ramped it up in this supporting brief. Like they REALLY ramped it up.

+ Gays make bad parents, and therefore shouldn’t be allowed to marry.

Plaintiff’s claim of a clear expert consensus is overstated.Indeed, the evidence relied upon by Plaintiff’s own expert demonstrates that studies comparing gay or lesbian parents to heterosexual parents have serious flaws… Numerous studies have pointed to methodological flaws in those studies comparing heterosexual and homosexual parents.

This is sort of a confusing point to make, given that the last time this was tried, at the Prop 8 trial, the judge found in his conclusion that all of the researchers and witnesses who supported the gays-being-bad-parents theory (ex. Kenneth Miller, David Blankenhorn) were in fact unprepared, unscientific and unreliable – Dr. Lamb, who’s also mentioned in this brief, was in contrast extremely well-prepared and supported all of his points thoroughly. Of course testimony from a different court case years ago can’t actually be used here, but it doesn’t bode well for what would happen if, for whatever reason, this court case wasn’t dismissed and Clement had to try to argue this in front of an actual judge.

+ Gays aren’t real, or at least they aren’t born that way, and therefore don’t deserve having their relationships validated.

Plaintiff next argues that sexual orientation is immutable. Pl.’s Mem. Summ. J. at 17-18. She states that “the Attorney General has recognized[] ‘a growing scientific consensus [that] accepts that sexual orientation is a characteristic that is immutable.’” Id. at 18 (second alteration in original) (quoting Feb. 23, 2011 Letter from Eric A. Holder Jr., Att’y Gen., to John A. Boehner, Speaker of the U.S. House of Reps. (Feb. 25, 2011) (ECF No. 10-2)) (“Holder Letter”). Whether a classification is “immutable” is of course a legal conclusion – not a scientific one – and the Attorney General’s selective reading of scientific evidence warrants no deference from this Court. His conclusion and the Plaintiff’s argument are also both wrong.

This is yet another point that’s exhaustively addressed in Judge Walker’s comprehensive 138-page ruling, but even besides from that, the question remains — even if sexual orientation isn’t immutable, and Edith Windsor married Thea Spyer instead of a man even though it meant she had to travel to Canada to do so, face a lifetime of discrimination and then later be charged $360,000 by the federal government because they didn’t think her marriage (and apparently sexual orientation also!) was “real” just for fun as a choice, why would that mean that she shouldn’t be allowed to marry? Or to have the government recognize her marriage, and refund her the $360,000 they took from her during one of the worst recessions in American history? (Spyer passed away in 2009.)

+ Gays aren’t really that discriminated against, at least not anymore.

…as Plaintiff’s own expert has admitted, “[a]lthough . . . antigay discrimination is popularly thought to have ancient roots, in fact it is a unique and relatively short-lived product of the twentieth century.” Moreover, whatever the historical record of discrimination, the most striking factor is how quickly things are changing through the normal democratic processes on issues ranging from same-sex marriage to “Don’t Ask Don’t Tell” and beyond.

Besides the incredible baldfaced bravado of this comment, given that the “historical record of discrimination” is ENTIRELY the fault of and perpetuated by Boehner, Clements, and people like them, and the fact that “things are changing through the normal democratic processes” is entirely because of their opponents, and in fact can be chalked up mostly to things EXACTLY LIKE THIS COURT CASE that they are, with this very brief, TRYING TO HAVE DISMISSED, it’s also wrong. Hate crimes against queer people are actually on the increase, LGB teens are still five times more likely to try to commit suicide than their straight peers, and in Massachusetts, the first state to legalize same-sex marriage and one of the most gay-friendly places in America, roughly a quarter of gay teens are homeless.  Given that Boehner’s administration, or at the very least set of values and principles, are directly responsible for either causing these problems or allowing them to persist, it seems like the kind of thing they wouldn’t want to draw attention to, but I guess that’s why Clement gets paid $520/hour and the rest of us don’t.

In short, this brief reads less like a list of reasons the courts should dismiss Windsor’s case, and more like a list of reasons that John Boehner might be obsessively focused on this case and pouring incredible amounts of government resources into it, despite the fact that Boehner’s party also just created a financial debacle that makes it clear exactly how outrageous this kind of unwarranted spending for an openly discriminatory act on the behalf of the US government really is. It should be a consolation that the courts probably won’t take any of these arguments seriously, just as they didn’t when they were presented all the other times in cases like the Prop 8 trial — but if your rage around issues like the debt ceiling is somehow starting to wane, it’s certainly good reading.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. Um. I hope in the distant future when people read articles about John Boehner’s person vendetta against gay Americans they think that he’s a fictional antagonist in a web-series. ‘Cause honestly, I’ll be embarrassed to admit to my kids that there were politicians who engaged in such insane doublethink.

    Luckily, that picture of Edith Windsor and Thea Spyer is freaking adorable.

  2. I still can’t believe this douchebag is Speaker of the House. I would say Dan Savage should popularize an alternate sexual meaning for Boehner’s name à la Santorum, but it’s just too obvious.

  3. Here’s the real question – is Boehner real?

    I hope not. It’s much easier for me to picture him & all his cronies as evil robots that have an inexplicable mission to carry out a crusade against the gays.

  4. I couldn’t even read this whole article…I just can’t handle this kind of vitriol anymore. (Especially since my own mother has basically said she won’t be attending my [lesbian] wedding because she doesn’t support our right to marry…)

  5. You couldn’t pay me $520/hour to be an illogical, prejudiced waste of carbon and make a career out of making morally-backwards judgements where they don’t belong.

    Glad to see there are soulless assfucks like Clement out there to fill the void. God forbid human rights be given to, you know, humans.

  6. If I had Hitler, Pol Pot, and Paul Clement locked in a room with me, and I had a gun with only two bullets… I would shoot Paul Clement twice.

      • Well, I suppose technically I’d have to vacuum the hell out of the other two. Pistol-whipping ashes seems ineffective.

  7. This is all Obama’s fault. He should have continued to just stay on the DOMA cases (even without making any meaningful defense) instead of stepping down and letting Boehner and his goons step in. Unlike the Justice Dept. lawyers who never really believed DOMA can be defended, we now have to fight lawyers who are true believers in the defense effort and will give DOMA the most passionate defense possible.

    Boehner will do what the republicans very predictably do on gay issues: prevent as much as possible any advance in gay rights. You all know this very well, so I don’t know what’s got everybody hyped up about this particular brief. It’s what you can expect. Were you all hoping Boehner’s lawyers were going to be merciful and concede that DOMA is indeed unconstitutional? That would be like asking the Germans in World War II to stop putting on their ferocious defense in a battle just because the opposing army is five times their size. It won’t happen. Crazy does not reason. Crazy just keeps trying on the same old thing over and over no matter whether it’s failed before. So republicans will try the same old tired arguments over and over before new judges, never mind that they’ve all been shot down by other judges before. Like my grandma used to say: “you can fix fat, you might even be able to fix ugly, but you can’t fix crazy.” Indeed, the only thing you can do with Crazy is to make sure they stay out of power in the first place.

    • I actually think that the more passionate people do a much worse job defending this stuff. Just look at these arguments. They’re terrible.

      • It’s true. They’re too emotionally invested in it to see (and therefore rebut) the other side’s arguments. Although a more rational person probably wouldn’t be able to do that either, because clearly all the rational people are on our side.

      • It’s nice to see at least the Right is finally cluing to the whole Separation of Church and State. Now they have to find other dumbshit reasons to say gays are bad without just turning to the Bible.


    • It’s actually probably better that the DOJ got out of it. Zealousness of advocacy isn’t really what determines the outcome of cases — it’s the legal arguments and the facts they relate to. And, like it or not, the DOJ (as the most visible litigation arm of the federal government) sometimes gets a bit of deference on close questions in cases. But, with them out of it and formally taking a position in opposition, the case goes from “ordinary citizens v. federal government” to “ordinary citizens + 1/3 of federal government v. 1/3 of federal government”… which is an entirely different scenario.

  8. Wow that last point is really something. I mean, you said it all, Rachel. But SERIOUSLY how does that not seem like a wildly inappropriate and counter-productive argument to make. They brought up Don’t Ask Don’t Tell??? Boehner has been trying to shelve the repeal as long as he has been speaker! Good lord.

  9. In the near future John Boehner, John McCain, Rick “Frothy Mix” Santorum and their buddies will be remembered like we remember George Wallace and his “segregation now, segregation tomorrow and segregation forever” speech.
    I wish none of had to live through this but, as Gandalf taught me, So do all who live to see such times but that is not for them to decide. All we have to decide is what to do with the time that is given us.
    So let’s fight those bigots with all we got.

  10. I find it interesting that many of the appellate court decisions cited in the brief occurred in the mid-to-late 80’s and early 90’s. Before DADT started. Before DOMA. Before the rash of state constitutional amendments defining marriage.

    Of course, I’m biased, but I don’t find the reasoning particularly persuasive… Still, this case isn’t likely to be resolved on summary judgment. I highly doubt the Second Circuit would jump headlong into creating a circuit split (assuring that this case is granted cert by SCOTUS even more so than it already is assured to be granted cert) without even bothering to hold a trial. Too many significant and close legal questions.

    (all of that means Boehner/Clement will win this round, but only by default.)

    • And by Second Circuit I meant the District Court in SDNY (which is technically within the Second Circuit)…

      Ugh. Need more caffeine.

  11. The arguments they give in defense of DOMA make no sense whatsoever. For example they cite ‘encouraging responsible procreation’. This is such bullshit. Nobody expects a reasonable person (such a federal judge) to believe that DOMA is going to force gay people to enter into a heterosexual marriage and procreate. Besides, there is not a single state where ability or even intent to procreate are requirements for a marriage license. Procreation and marriage really have nothing to do with each other because each exists without the other.

    Another one of their arguments basically asserts that we should keep DOMA in place because gays are NOT politically powerless. This is bullshit because the political power of gays is totally irrelevant to the question of the constitutionality of DOMA. Regardless of the political power of gays, DOMA has to go because it discriminates against a minority group. Again, no-one expects a judge to buy any of this. The only reason they’re using these arguments is because it’s all they’ve got and they can’t be any worse off than conceding the case altogether.

    • Well, you’re at least slightly wrong on the second point. Political powerlessness is a factor in the classification of “suspect classes.” If a law discriminates on the basis of a suspect class, it’s subject to strict scrutiny for an equal protection challenge, rather than intermediate or rational basis scrutiny.

      If a law is evaluated under strict scrutiny it has to serve a compelling government interest, be narrowly tailored, and be the least restrictive means of achieving that interest.

      The rational basis standard on the other hand, requires only that the law be rationally related to a legitimate government interest. Intermediate scrutiny is the fuzzy middle ground between the two standards.

      Bottom line is, the particular type of judicial review that the dist. ct. in SDNY applies, and that the Second Circuit and SCOTUS either affirm/reverse makes all the difference on how easy it is to get DOMA declared unconstitutional.

      For example, say DOMA was subject to strict scrutiny. It probably fails, because at best, it satisfies only one prong of the test. You could make the argument that encouraging procreation / protecting the definition of marriage is a compelling government interest. It’s a weak ass argument, but you could make it. But the law is certainly not narrowly tailored, or the least restrictive means to encourage responsible procreation or marriage. It just isn’t. So, it fails.

      Under rational basis review, it’s more difficult. Because those interests only have to be legitimate — not compelling. It’s a much lower bar. Further, if DOMA is subject to rational basis review, it doesn’t matter at all whether Congress passed it because of bigotry or stupidity. If you could somehow find a legitimate government interest that it is rationally related to (even if that wasn’t the interest of Congress at the time of the law’s creation) it’s constitutional.

      So… yeah. Plus, if we can get the 2nd to affirm strict or intermediate scrutiny, and the SCOTUS to do the same, it changes the entire playing field for gay rights litigation — at the state and federal level. It’s kind of huge.

      • Remich:
        You seem exceptionally well versed on the topic – I’m assuming you are in the legal field in some manner. What are your thoughts about how/when the ruling might go, especially in regards to heightened/rational scrutiny?

  12. I’m justing picturing them all smugly sitting there with smug looks on their faces thinking smugly about how they’ve outwitted the gays with their stupid logic. Thanks, Rachel, for the breakdown and also for pointing out that everything’s NOT getting better for everybody. I hadn’t even thought of that.

  13. The whole “It’s a choice, no one is born gay” thing is always extra infuriating to me. Here’s the thing: SO WHAT IF IT IS A CHOICE? I’m not saying it is, but if it were, how would that honestly make it any different? That’s the thing about a supposed democracy – we’re allowed to make choices. It’s right there in the Constitution: Life, love and the pursuit of happiness. You should be with whoever makes you happy. People aren’t naturally born to be orange either, but that’s what John Boehner’s chosen for himself and I support his right to spray himself with fake tanner at least 4 times a week.

    • It’s one of those bizarre things that *shouldn’t* matter in any normal way, but does because of the legal framework that we live in.


  14. i accidentally clicked on that last picture, filling my screen with his face. it was not pleasant.

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