Do not let this Book of the Law depart from your mouth

[Author’s note: I started writing this over the weekend, only to find on Monday that King & Spaulding backed out of the deal yesterday.  Either way, the broader point in this still stands.]

Last week, the House Bipartisan Legal Advisory Group (“BLAG”) approved spending up to $500,000, billed at up to $520 per hour by the law firm of King & Spaulding, “in order to litigate the constitutionality of Section III of the Defense of Marriage Act” in federal courts. The quoted language comes directly from the contract, which you can read here.

In response to the contract, a spokesman for Rep. Nancy Pelosi, who opposed the Advisory Group’s effort to involve itself in the pending federal court cases, said:

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“The hypocrisy of this legal boondoggle is mind-blowing. Speaker Boehner is spending half a million dollars of taxpayer money to defend discrimination. If Republicans were really interested in cutting spending, this should be at the top of the list.”

Now, on one hand, I think that Ms. Pelosi’s statement is a nice little rhetorical flourish design to point out the hypocrisy of the “cut spending” crowd.  To whatever extent this line of reasoning can pit fiscal conservatives against social conservatives — the first rule of GOP Fight Club is you don’t talk about reality — I can get behind the statement.

On the other hand, however, acting like an additional $500,000 matters in the grand scheme of things will probably strike a few people as a tad disingenuous, especially when it comes from a rather profligate spender.  Complaining about this amount is a lot like complaining about the calories in ketchup while you pound a triple Baconator, Biggie fries (now with sea salt!), and a large chocolate shake.

Worse than that, however, couching this as an issue of hypocrisy by those who would cut spending takes the focus off the real issue: social conservatives pushing their King James Version of morality on others.1

Not that you could get Messrs. Boehner, Cantor, and McConnell to admit that this was their goal, mind you.2 According to Mr. Boehner, it’s about separation of powers, or, as he put it, “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”  This sounds believable enough, but it falls apart pretty quickly if you look at what is really going on.

Allow me to back up a bit and lay out el panorama general.

On February23, 2011, Attorney General Eric Holder issued a statement on behalf of President Obama that discussed why the Administration felt heightened scrutiny was appropriate regarding sexual orientation.  In that statement, Mr. Holder explained that the Administration has looked at the factors the Supreme Court had previously used for determining who constituted a suspect class as well as the rationale used by federal district and circuit courts in applying rational-basis review, and based on these the Administration determined: (1) that the rationales for rational-basis review were no longer legally valid, (2) that the Supreme Court criteria for suspects classes along with the changing attitudes of society toward homosexuals suggested that heightened scrutiny was appropriate, and (3) that the actual reasons proffered by Congress in passing DOMA would not survive heightened scrutiny.  Therefore, the Administration felt that Section 3 of DOMA was unconstitutional, and it stated:

I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law.  If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.   Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.  We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

That’s it.  The Administration did not issue a blanket statement that DOMA was unconstitutional and would no longer be enforced at all.  In fact, it stated that federal agencies should continue to follow the rules of Section 3 until such time as it was declared invalid by the Supreme Court.  It did suggest that it would stop defending DOMA (including Section 3) in circuits where there already was precedent for a standard of review.  It did not even foreclose the possibility that it would defend Section 3 under the rational-basis standard if it was asked by the district courts to do so.  Finally, it stated that it would (a) continue to represent the U.S.’s interests in the cases and (b) inform Congress so that Congress might involve itself in the defense of DOMA if it wished.

It is precisely because of how the Administration limited the scope of their statement that any claim that the House seeks to defend Section 3 based on separation-of-powers concerns quickly falls apart.  As former Solicitor General Seth Waxman has explained,3 there are some well-recognized scenarios where the appropriate duty of the Department of Justice is to not defend an act of Congress.

One of these recognized exceptions, which was in fact referenced by the DOJ in their letter, is explained by Waxman thusly: “[T]he Department of Justice has occasionally declined to make professionally respectable arguments, even when available, to defend a statute — typically, in cases in which it is manifest that the President has concluded that the statute is unconstitutional.”  Waxman also added that “the decision not to defend a statute, and indeed to advocate against it, should be a rare and solemn act.”  Indeed, it is a fairly rare act, but not one so rare that President Obama is doing anything that other recent Presidents have not done.  In 1990, for example, the DOJ under President George H.W. Bush did not defend “statutory provisions prohibiting the Federal Communications Commission (FCC) from diluting its regulatory preferences for minority-owned stations” after President Bush made it clear that he felt the provisions were unconstitutional.  Similarly, in 1982, President Reagan refused to defend an IRS policy denying tax exemptions to Bob Jones University, which practiced racial segregation for religious reasons.

If you think about it, the President’s ability to direct the DOJ not to defend a law that he believes is unconstitutional makes perfect sense.  After all, the President’s oath of office requires that he “preserve, protect, and defend” the Constitution, and this duty certainly supersedes any duty to defend an act of Congress. In fact, somewhat ironically, the real separation-of-powers problem would occur if a President was not able to refuse to defend an unconstitutional law, as he would be allowing Congress to abrogate his duty to defend the Constitution.  Which explains why, according to a 1996 memo by the Justice Department (pdf link), Presidents have declined to defend laws they believe to be unconstitutional since at least 1946.

So, you’ve got a severely limited situation, in which the Administration is fulfilling its duty to defend the Constitution while, at the same time, inviting Congress to get involved in the litigation if they disagree with the President’s position.  As to Congress’ options here, if they did not get involved, and the Second Circuit agreed that heightened scrutiny was appropriate, there would be a split in the federal courts, and it would almost certainly be resolved by the Supreme Court.  Which is what Mr. Boehner suggested was the House’s goal for this litigation.  Conversely, if they did not get involved, and the Second Circuit instead applied rational-basis as all other federal courts have to this point, there would be no split, and Section 3 would still almost certainly be in effect.

Which brings me full-circle to my original point: the issue here is not whether the President is doing something wrong, as Mr. Boehner suggests, but rather why is the spending-cut-happy House of Representatives is so willing to spend $500k to jump into the legal fray here?

The only answer that makes sense is that they are willing to pay because this issue involves gay couples.

Nevermind that Section 2 of DOMA is not effected, meaning that the 45 states that do not recognize gay marriages will still be free to do so.  Nevermind that, by taking this new position, the Administration is respecting each state’s right to define “marriage,” and saying that it will honor each state’s decision.  Nevermind that literally doing nothing would nonetheless result in reaching their stated goal or would render the whole discussion moot.  Nevermind that four credible polls in the last eight months show that opponents of gay marriage are now in the minority nationally.

Nope, none of that matters.  All that matters is that the President’s position on Section 3 makes it likelier by a percentage greater than zero that the federal government might have to recognize gay marriage.  And why is the Republican leadership of the House so opposed to that?

Actually, that’s a question that is simultaneously easy and difficult to answer.  The easy answer is “because the Religious Right tells them to.”  The question is more difficult to answer when we try to figure out why the Religious Right — and, by extension, Republican leadership and other varieties of social conservative — opposes gay marriage.

Oh, sure, the Bible references homosexuality, but I often get the feeling that people who quote Biblical passages as an argument against any sort of tolerance or rights for homosexuals haven’t fully considered some of the passages they are quoting.  I do not pretend to be a Biblical scholar in any way, but there’s a lot of missing the forest for the trees going on when I read the source material that underlies some of these anti-homosexuality screeds.

For example, Genesis 19, the story of Sodom and Gomorrah, is frequently quoted by those who would suggest that Sodom was destroyed because of same-sex intercourse.  What this argument overlooks is that the sex in question in Sodom was same-sex rape of Lot and the angels done to humiliate the victims.  Even if you ignore the purpose (and the fact that angels were involved), these actions were to homosexuality as male-female rape is to heterosexuality. Even more importantly, Sodom was deemed worthy of destruction prior to the homosexuality in question.  To quote Inge Anderson, “Saying that the last recorded acts of the Sodomites — the demands for same-gender sex — are proof that they were destroyed for homosexuality is like saying that a condemned man cursing his guards on the way to his execution is being executed for cursing the guards.”

Likewise, many on the Religious Right lean heavily on two passages in Leviticus — 18:22 and 20:13.  Two things jump out at me about these passages and, more generally, this book of the Bible.  First, if the literal translations of these passages are considered in the context of the entire book, where there is a laundry list of shall-nots laid out, there are different interpretations that one could reach.  More generally, however, I wonder how many of those who use Leviticus to “prove” their point follow the rest of that book to the letter by not cutting their hair or shaving (19:27), never wearing clothes made of multiple fabrics (19:19), believing that the blind and disabled cannot go to Heaven (21:18), believing that slavery is ok (25:44), killing children who curse their parents (20:9), killing those who take the Lord’s name in vain (24:16), and thinking that those who profess to be psychics should be stoned to death (20:27). Because, maybe it’s just me, but cherry-picking the part of an book that you want to believe and using it to degrade others, while simultaneously ignoring the parts that might affect you, smacks of hypocrisy, and that is a definite no-no (Matthew 7:5).

Perhaps the most heavily relied upon passage used to condemn homosexuality is Romans 1:26-27.  Again, there is arguably some interpretive wiggle room here — the entire passage, taken in context, can easily be read as the sin being people engaging in sexual acts which are against their personal nature (i.e. a heterosexual engaging in homosexual acts), especially if you include Romans 1:31-32.  Beyond that, however, there is something amazingly ironic about anyone using Romans to judge others, when Romans 2:1, which comes immediately after the previous discussion of sex, reads: “Therefore thou art inexcusable, O man, whosoever thou art that judgest: for wherein thou judgest another, thou condemnest thyself; for thou that judgest doest the same things.”

The other major passages used to support an anti-gay position are similarly not dispositive.  1 Corinthians 6:9-10 uses selective translation of a Greek word, malakoi, and translates it as “effeminate” when that word translates to “soft” elsewhere in the Bible, and it has the ambiguous word, arsenokoitai, which was not the Greek word for “homosexual” (paiderasste) in use at the time.  Arsenokoitai also appears in 1 Timothy and, though the actual meaning of the word is lost to history, has been defined in the KJV as it was in 1 Corinthians.  At best, both of these passages are vague; at worst, they have been incorrectly translated based on the roots of arsenokoitaiarsen, meaning “man,” and koitai, meaning “bed” — lend themselves to the message translators wanted to portray.4 However, when you account for the selective translation used in 1 Corinthians for malakoi, the translations of arsenokoitai become somewhat suspect.5

Finally, in terms of major Biblical passages proffered by anti-gay Christians, there is Jude 1:7, which refers back to Sodom and Gomorrah and decries people “giving themselves over to fornication, and going after strange flesh.” For whatever reason, “strange flesh” has been taken to mean “homosexual,” despite the fact that the original Greek from which it was translated is sarkos heteras. Yes, that’s the same heteras that is the root of our word, heterosexual. It seems odd at best to suggest that sarkos heteras is referring to homosexuality rather than the angels (i.e. non-humans) who were raped in Sodom or even the act of rape itself.

Like I said, I do not profess to be a Biblical scholar, so my interpretations here are just my own thoughts and application of logic.  Of course, not all who oppose the recognition of gay marriage do so because of something explicit in the Bible; there is the more general argument that recognizing gay marriage would somehow cheapen or affect heterosexual marriage.  This falls flat with me, both because the only way allowing gay marriage would affect one’s heterosexual marriage is if one partner in the hetero marriage only got married because s/he could not legally marry someone of the same sex, and because I feel like legally allowing divorce (which some religions oppose) has a much greater impact on hetero marriage than homosexual marriage would.  In fact, on a continuum of things that could affect heterosexual marriage, recognizing gay marriage would fall somewhere between “sun rising in the East” and “Hogs lost last weekend.”

Nor do I give much weight to the idea that gay marriage should be opposed because marriage is for procreation.  We let sterile and post-menopausal women marry, despite neither of those groups being able to procreate.  We allow people to use contraceptives to prevent procreation, even after they are married.  We don’t require people to be married before they may procreate.  On pretty much every level, this argument appears fairly ridiculous.

Wow…I got WAY off-track from where I’d intended to go with this post.  I certainly didn’t anticipate a Biblical discussion.

Oh well.  I suppose these were just some ideas I needed to get off my chest.  To summarize, however:

  • There is no need for the House of Representatives to pay a dime to defend Section 3 of DOMA.  Doing nothing will result either in the same outcome they claim to be seeking or will render the whole thing moot.
  • The only reason they would do so is because they have some sort of reason to oppose the very concept of gay marriage.
  • The arguments, both Biblical and otherwise, that have been proffered against gay marriage are suspect at best.
  • I don’t hate religion; I only hate selective application of religion to oppress groups or deny privileges to groups that a religion dislikes.

That’s pretty much it.  The last thing I will add, though, is that I do not mean to suggest that every conservative is anti-homosexuality or even that every conservative is anti-gay marriage.  I know a few, in fact, who absolutely are neither of these things.  To the extent I painted with too broad of a brush above, I apologize.

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1 Standard disclaimer: Because this is the South, where people can be a little testy about religion, every time I write something like “King James Version of morality,” I feel the need to drop a footnote and specify that I do not have any problem with religion or with the Bible. I’m a firm believer in everyone’s right to worship as they please, and one of my co-bloggers here is devoutly Christian.  My gripe is with those who use the Bible, rather than logic, to justify their policy positions. It also strikes me as odd that, for the most part, the same people who use religion to justify anti-gay positions do not seem to think that Jesus Christ would want them to be in favor of universal healthcare. But that’s really neither here nor there.

2 In case you were wondering, the other two members of the BLAG, Ms. Pelosi and Sen. Harry Reid, voted against this expenditure. That’s why I singled out the three Republicans.

3 I haven’t looked to see if it is available online, but you can find Waxman’s explanation at 79 N.C. L. Rev. 1073 (2001).

4 Yes, I am suggesting that there were political concerns involved, both in deciding what books were in the Bible and in subsequent translations thereof. For additional discussion of this, see, e.g., The Politics of English Bible Translation in Georgian Britain: The Alexander Prize, by Neil W. Hitchin, in Transactions of the Royal Historical Society, Sixth Series, Vol. 9, (1999), pp. 67-92.

5 Indeed, other translations of the Bible the word “catamites,” to describe one group of individuals that Paul believed will go to Hell. The New Heritage Dictionary defines “catamite” as “a boy who has a sexual relationship with a man.”

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