Is Boehner’s DOMA Defense Following The Path Of Proposition 8?
September 14, 2011 11:33 am ET by Carlos Maza
With each passing day, it’s becoming harder to ignore the similarities between the House of Representative's current attempt to defend the federal Defense of Marriage Act (DOMA) and the failed defense of California’s Proposition 8 in 2010.
Same Old Arguments
Last month, Paul Clement – the lead attorney hired by Rep. John Boehner (R-OH) to defend DOMA in federal court – filed two motions to dismiss the case of Windsor v. United States, one of several current legal challenges to the 15-year-old marriage law. The briefs revived a long list of typical anti-gay talking points: children need a mother and a father, ‘traditional marriage’ is necessary to encourage procreation, etc.
These arguments are nothing new: many of them are the same ones that were used (and rejected) in the 2009 First Circuit case Gill et al v. US Office of Personnel Management, which found Section 3 of DOMA unconstitutional.
They’re also the same arguments put forward by proponents of Proposition 8 in the 2010 district court case, Perry v. Schwarzenegger. In Perry, each of those arguments was thoroughly dismantled, first by the plaintiffs’ attorneys and eventually by U.S. District Judge Vaughn Walker’s “factual, well-reasoned, and powerful” 136-page decision. Walker found that, even under the most deferential standard of judicial review, there was no rational basis for denying gay and lesbian couples the right to marry.
Same Old Non-Witnesses
In the Windsor case, Clement has had a difficult time securing credible experts and witnesses to provide testimony in defense of DOMA. As AMERICAblog’s Joe Sudbay has noted, Clement tried to rely on the ‘work’ of anti-gay activists like Maggie Gallagher. Windsor’s lawyers filed a motion to strike Maggie’s work from the record, citing their lack of an opportunity to cross examine her in court.
A similar situation arose during the Perry trial. Defense attorney Charles Cooper found himself unable to put forth more than two ‘expert’ witnesses – one who was quickly dismissed as lacking “the qualifications to offer opinion testimony” and another who’s testimony was given “little weight.” Cooper’s inability to find credible experts to support Prop 8 eventually led Judge Walker to ask:
Seven million Californians, 70 judges and this long history that you described. Why did you present but one witness on this subject?
One of Cooper’s original witnesses, David Blankenhorn, also cited Maggie Gallagher in his testimony. The citation resulted in an exchange during which attorney David Boies pressed Blankenhorn to provide an example of peer-reviewed “scholarship” Gallagher had produced:
BOIES: Has Maggie Gallagher written any peer-reviewed article that you believe is characterized by the ideals of integrity and objectivity that you have described that you have relied on?
BLANKENHORN: That I have relied on for my testimony here today?
BOIES: Let's answer that question first. That wasn't really my question, but let's put that question and get an answer to that.
BLANKENHORN: There are no such articles that I have specifically relied on for my testimony here today, or my preparation for my testimony here today.
And Now, Same Old Shame
Monday it was reported that the House’s Bipartisan Legal Advisory Group (BLAG) would oppose video recording the courtroom proceedings in Golinski v. United States, another case challenging DOMA’s constitutionality in federal court. BLAG’s opposition effectively ensures that the proceedings won’t be videotaped, as all parties must agree before the arguments can be recorded.
BLAG’s position is reminiscent of the ongoing battle to prevent the public from viewing the footage of the Perry trial.
For months, Prop 8’s proponents have been fighting “tooth-and-nail” to prevent the release of the trial footage, claiming that their anti-equality witnesses might be harassed and targeted for opposing same-sex marriage. This claim makes little sense: transcripts from the trial are publicly available, and both anti-equality witnesses had national profiles well before the Perry trial began.
As the American Foundation for Equal Rights – which represented the plaintiffs in the Perry case – has pointed out, it’s much more likely that Prop 8’s defenders are embarrassed about what happened during the trial. The defense’s witnesses admitted to lacking specific knowledge on a number of issues, contradicted themselves, and on several occasions, even agreed with the arguments made against Prop 8.
Is it possible, then, that BLAG is preparing itself for the possibility of similar embarrassment? House Minority Leader Nancy Pelosi’s (D-CA) office seems to think so, recently writing:
Our office was not informed about this decision so it was not raised with the full membership of the Bipartisan Legal Advisory Group. Leader Pelosi strongly supports transparency, but this decision by Speaker Boehner is not a surprise since his defense of the indefensible 'Defense of Marriage' Act does not have the facts or the law on its side. [emphasis added]
While BLAG’s motion to oppose recording the Golinski proceedings didn’t explain why it preferred to keep cameras out of the courtroom, one thing seems clear: the more the similarities between the House’s DOMA defense and Prop 8’s defense in Perry, the better.