Lawmakers’ ‘moral disapproval’ of gay people in 1996 could doom DOMA law in Supreme Court

Comments made 17 years ago by lawmakers about their "moral disapproval" of homosexuality came back to haunt them Wednesday as Supreme Court justices weighed whether the 1996 Defense of Marriage Act (DOMA) unfairly discriminates against same-sex married couples.

Justice Elena Kagan, whom President Barack Obama appointed to the bench, closely questioned attorney Paul Clement, who was defending the law, about whether DOMA was passed with the specific intent to discriminate against an unpopular minority group. Kagan said anytime a law targets a group of people "that is not everybody's favorite group in the world" it raises a red flag that Congress' judgment was "infected by dislike, by fear, by animus."

Clement refuted that, saying the federal government was forced to take action in 1996 because for the first time, it appeared possible that a state would allow same-sex couples to wed. If a few states allowed same-sex marriage and the others did not, Clement said it would create confusion at the federal level as to how to apply the more than 1,000 laws and statutes that affect married couples.

Kagan interrupted. "Well, is what happened in 1996—and I'm going to quote from the House report here—is that 'Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.' Is that what happened in 1996?"

Kagan's question provoked a few gasps and laughter in the courtroom, but Clement was not caught off guard. "Does the House report say that? Of course, the House report says that. And if that's enough to invalidate the statute, then you should invalidate the statute," Clement said.

In the 1996 House Judiciary Committee report on DOMA, lawmakers affirmed that "civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality."

At the time, such language was standard when talking about why gay people should not marry, even in legal settings. In recent years, however, as public opinion has shifted dramatically on the issue (recent polls show a majority of Americans are in favor of same-sex marriage for the first time), legal arguments have shifted away from expressing disapproval of gay people.

In the Proposition 8 and DOMA cases before the Supreme Court this week, advocates defending both laws studiously avoided any arguments that suggested gay people are morally inferior to straight people. The lawyer defending Proposition 8, Charles Cooper, asked the justices to allow the "earnest debate" over same-sex marriage to continue without the interference of the court, while Clement stuck to his argument that the federal government defines marriage to exclude same-sex couples simply to keep things uniform and less confusing.

Whether or not lawmakers in 1996 were motivated by a dislike or hatred of gay people could be very important in how justices decide the case.

In Lawrence v. Texas (2003), a landmark gay rights opinion striking down state sodomy laws written by swing Justice Anthony Kennedy, the court ruled that moral disapproval or dislike of a group of people's behavior is not a legitimate reason to outlaw it. But Clement argued that even if a few lawmakers were motivated by animus, many also had legitimate, rational reasons to want to pass the law, such as upholding tradition or reducing government confusion.

That could be enough to justify DOMA as long as the court is reviewing it on the lowest standard of scrutiny, called rational basis. But those who oppose DOMA argue that the law should face a higher level of scrutiny from the justices because it targets an unpopular minority group that lacks political power and has faced discrimination historically. (Laws that target people based on their race, for example, face the highest level of scrutiny from the courts.)

Chief Justice John Roberts appeared to doubt that gay people are a disadvantaged minority under that definition, however. "As far as I can tell, political figures are falling over themselves to endorse your side of the case," he told attorney Roberta Kaplan, who argued to strike down DOMA on Wednesday. Roberts said those supporting gay marriage are "politically powerful."