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Debating Discrimination, Extent of Federal Authority in Defense of Marriage Act

While the Supreme Court considers arguments for and against the federal Defense of Marriage Act, Judy Woodruff moderates a debate between Ken Klukowski, director of the Center for Religious Liberty at the Family Research Center, and Mary Bonauto, special counsel for the group Gay & Lesbian Advocates & Defenders.

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    And we return to today's Supreme Court arguments involving the federal Defense of Marriage Act with a debate of our own.

    Supporting the law is Ken Klukowski. He's the director of the Center for Religious Liberty at the Family Research Council and a Breitbart News legal columnist. And Mary Bonauto opposes DOMA. She is special counsel for the group Gay and Lesbian Advocates and Defenders.

    And welcome to the you both to the NewsHour.

    KEN KLUKOWSKI, Center for Religious Liberty, Family Research Council: Thank you.


    So, we were just saying before this conversation began there was some discussion at the court today about jurisdiction, but we're going to set that aside and talk about the core of the argument today.

    First of all, in the — Mary Bonauto, in the analysis I have been reading, there is — there are a number of folks who are concluding that there are enough votes now on the court to strike down DOMA. How did you read generally what you heard from the justices today?

    MARY BONAUTO, Gay and Lesbian Advocates and Defenders: Yes, I'm not prepared to make any predictions based on an oral argument.

    But, clearly, the questions were going to two key issues. One is when the federal government has for so long deferred to a state's determination about who is married, why in 1996 did they change the rules when it looked like same-sex couples might begin to marry and impose a federal definition?

    And then, secondly, when you have all these protections that are available to married people, you know, why are you taking people from Massachusetts, Connecticut, Vermont, and saying their marriages don't count for Social Security and family medical leave and treating them like they're single, even though they're legally committed in marriage?


    Well, let's talk about those two different streams of argument today, one, loosely, discrimination, the other one, loosely, the federal vs. the states.

    And, Ken Klukowski, does one of those strands of argument have greater weight, did you think, today in what you heard?


    Well, the reality is that I think it's — looking at it from a different aspect, the reality is, DOMA — DOMA filled in the blanks — and there's a lot of blanks.

    About 1,100 provisions of federal law reference marriage. But it wasn't the first one. Regarding, for example, filing taxes, if you're going to file a joint married tax return, it's the tax code that specifies that if you are married, but separated from your spouse — now, you're still legally married under the state, but it's illegal for you to file a married tax return. You must file an unmarried person tax return.

    Also, if you are married to someone who is not a citizen and they're not in the country, you have to file a single tax return. There are aspects of immigration law. So, there are many areas of law going back decades where Congress has had the definition of marriage.


    You're saying there is a legitimate role for the federal government, you're saying, in regulating these relationships?


    That's exactly right.

    Who can get married is a state issue. But what federal benefits, mainly, usually entitlements, what federal benefits go to which sort of unions, that's a legitimate exercise of federal power, so long as it's one of Congress' powers in Article One, Section Eight of the Constitution.


    And we heard Justice Kennedy today questioning that in particular, didn't we, the role of the federal government in overriding the states in determining how these laws are going to be interpreted.


    We did.

    And just to respond quickly, we have never had a situation where the Congress has wiped out a whole class of marriages for purposes of every federal law and program, and that's what DOMA is. In the context of any particular program, yes, there's play in the joints, but there's never been a law that just said, oh, these people who were actually married by a state are not married for any federal purpose.

    That's what is so different about DOMA, which gets into the equal protection issue. And then Justice Kennedy had another set of questions about, does the federal government even have the power to do this, not even from an equal protection standpoint, but isn't this something that solely belongs with the states?


    And what about — and what's the answer to those questions — to that question?


    There are federal issues.

    It's a great question. The federal government required several states, as a condition for becoming a state, that they must adopt the state standard that they wouldn't allow polygamy. The Supreme Court dealt with marriage other than one man and one woman in Reynolds v. United States in 1878, where they said there is no constitutional right to polygamy.

    DOMA defines marriages for federal law purposes, only federal law. A state is free to create polygamy or same-sex marriage or anything. But the federal government recognizes one man and one woman also has an impact right now on current immigration efforts. It's something that spreads throughout the federal law.

    And the reality is, federalism has two parts. States are sovereign where they are sovereign. But where the federal government is properly in the Constitution, the federal government gets to set its own rules.


    What's the response to that?


    There's a few responses to that.

    On the polygamy thing, just to be really clear about the historical record, these were territories. And the territories, as a condition of statehood, had to agree to something. It has never been the case that the U.S. government has, again, invalidated a whole class of existing state-licensed marriages.

    DOMA is an anomaly. And I don't think there was any disagreement about that on the court today, at least in terms of what one could hear about the questions.


    Now, what — the other strand of this — and you touched on this, Mary Bonauto, a minute ago — and that is whether there is out-and-out discrimination here.

    We heard that from Justice Sotomayor. We heard it from Justice Kagan. We heard her ask at one point that whether — she talked about moral disapproval of homosexuality. How did that play out in the court today and how important is that, Ken Klukowski, to deciding this case?


    Well, more important is that the Obama administration rejected it. They readily said in court, no, this was not — DOMA wasn't driven by animus.

    In fact, they said DOMA, if — what is called rational basis review, which is the federal law — federal standard under equal protection when we evaluate laws — the Obama solicitor general, Don Verrilli, who we just heard, said if rational basis review is the test, DOMA would survive. There are legitimate interests here. This law is rationally related to advancing them.

    And this law, they said Congress made a mistake in passing it, but wasn't trying to discriminate.


    So what role do you see discrimination playing in the outcome here?


    I see it as playing a role.

    This is not about naming — calling people names or anything else. But, in 1996, it was really clear that the law was, you take state marriage laws as you find them. You fold married people, whether they have differences in racial restriction in the past or first cousins, or second cousins, or how many marriages you can have — if you were married by your state, you got folded into that system for the federal government.

    And they changed the rule to make sure that married same-sex couples wouldn't be included. That is the situation. So then the question becomes, well, is there a justification for making a new rule? And the justification that's been advanced by Mr. Clement is really around this idea of uniformity, that it's important to treat all gay people alike.

    But we have a system, when we're talking about federal marital benefits and burdens, of treating married people. And we have now an anomaly where we're treating married gay people as though they're unmarried, as opposed to treating all married people alike, whether they're gay or non-gay. So, the uniformity thing just doesn't seem to make a lot of sense.


    And how do you — how do you answer that?


    Well, I think there is a legitimate federal role here.

    The reason I raise polygamy isn't to raise some far-off issue. Legislation is actually — I'm sorry — litigation has already started. Jonathan Turley, a professor at George Washington, is right now pursuing litigation in Utah, saying if there is a right to same-sex marriage, then there is a right to polygamy.

    Now, and he's saying, I'm all for that. I don't think the government should discriminate on that base either. So, I think both sides here agree that there is a role for the government to draw lines. We're just debating where — where those lines are. And I think, as we understand the different combinations that could be involved, then people will understand what the Obama administration conceded in court and in their briefs today, that — that DOMA does serve legitimate interests and is reasonably related to it.

    The Obama administration said the law will only be struck down if a court applies what's called heightened scrutiny to this law.


    You want to quickly respond?

    And I want to just clarify with you both that you're both saying then — do I hear you saying that it's the federalism argument that's going to hold more weight here?


    I think the equal protection argument is going to hold more weight ultimately.

    And I say that because, even if you take the situation where — let's just even say, even though it's so far-fetched, that some state did authorize multiple-person marriages, again, on equal protection, the question is, what are the government's interests here in saying we're not going to respect those marriages, where there's an acknowledged harm to women and subordination and so on?

    There's a lot of reasons. The question in this case is, let's not change the topic. Let's say, what's the interest in saying that these committed couples who are joined in marriage by their states, many of whom are raising kids, should be cut out of the whole federal safety net?


    A very quick response.


    The quick response is, in that one part, I agree with the Obama administration. And I would encourage people to look at their filings of what the legitimate interest is and why they agree that DOMA does in fact advance them.


    Ken Klukowski, Mary Bonauto, we thank you both.


    Thank you.


    Thank you, Judy.

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