Art Imitates Life, Life Imitates Art: Some Thoughts on DOMA
By Lisa McElroy
But this post is not about how much I wish that President Bartlet had really served our country as President, with Josh and Toby and CJ backing him up in advancing progressive causes. It’s about how DOMA has been a much-talked about issue for many, many years, and how it is critical that the Supreme Court decide this issue now.
Let’s start by setting the scene – the scene in the 2004 West Wing, that is. Josh and Toby come up with a strategy to fill the vacant seat that they call the “swapadeedoo.” The idea is that the best debate on the Court comes from opposite ends of the spectrum, and that liberals can only get moderates confirmed because of the Republican-controlled Senate. Therefore, (with the President’s blessing), they approach the “liberal lion” Chief Justice and ask him to step down. Their plan? To fill his seat with a liberal woman, and allow the Republicans to choose one of their own for the Associate Justice seat.
The potential female nominee (Evelyn Baker Lang) meets with the President first, while the conservative ideologue (Christopher Mulready) waits in a conference room. Toby Ziegler starts chatting with Mulready as they wait.
The best episode of the best series ever on
television, way back on March 24, 2004 (pretty much exactly nine years ago, when
only Massachusetts allowed gay marriage), came to mind today as I was reviewing
the coverage of the DOMA arguments. OK,
I’ll admit it, I find pretty much any excuse to watch The Supremes, a fifth-season episode of The West Wing in which President Bartlet must fill a suddenly
vacant seat on the Supreme Court. I make
my Supreme Court seminar students watch it every year when we talk about
appointments, and now that my children are in middle school, I’ll probably
subject them to it, too.
But this post is not about how much I wish that President Bartlet had really served our country as President, with Josh and Toby and CJ backing him up in advancing progressive causes. It’s about how DOMA has been a much-talked about issue for many, many years, and how it is critical that the Supreme Court decide this issue now.
Let’s start by setting the scene – the scene in the 2004 West Wing, that is. Josh and Toby come up with a strategy to fill the vacant seat that they call the “swapadeedoo.” The idea is that the best debate on the Court comes from opposite ends of the spectrum, and that liberals can only get moderates confirmed because of the Republican-controlled Senate. Therefore, (with the President’s blessing), they approach the “liberal lion” Chief Justice and ask him to step down. Their plan? To fill his seat with a liberal woman, and allow the Republicans to choose one of their own for the Associate Justice seat.
The potential female nominee (Evelyn Baker Lang) meets with the President first, while the conservative ideologue (Christopher Mulready) waits in a conference room. Toby Ziegler starts chatting with Mulready as they wait.
I read your article on [gay rights] and I may be
out on a fringe here, but I don't see how a family values conservative
justifies denying committed couples access to the benefits of state sanctioned
monogamy.
CHRISTOPHER MULREADY
Homosexual couples.
TOBY ZIEGLER
Couples.
A couple is a couple.
TOBY ZIEGLER
It's an equal protection violation.
CHRISTOPHER MULREADY
Homosexuals are not a suspect class.
TOBY ZIEGLER
Only one that denies access.
CHRISTOPHER MULREADY
No.
TOBY ZIEGLER
To over 1,000 federal protections.
CHRISTOPHER MULREADY
To what?
TOBY ZIEGLER
Survivor benefits under Social Security.
CHRISTOPHER MULREADY
$255.00?
I'll write you a check.
TOBY ZIEGLER
Hospital decision making.
CHRISTOPHER MULREADY
So, talk about power of attorney, not
marriage. Besides the fact is, DOMA
doesn't restrict access to marriage.
TOBY ZIEGLER
Of course it restricts access. It restricts full
faith and credit.
CHRISTOPHER MULREADY
So, Vermont gets to steer a nation on wide marriage
legislation? Vermont?
Baker Lang walks in after her meeting with the President
and greets Mulready.
CHRISTOPHER MULREADY
Mr. Ziegler was trying to convince me that the Defense
of Marriage Act is unconstitutional.
EVELYN BAKER LANG
Oh, DOMA?!
He was trying to convince you? [chuckle]
TOBY ZIEGLER
What?
EVELYN BAKER LANG
He doesn't need convincing.
TOBY ZIEGLER
I wasn't doing it because...
EVELYN BAKER LANG
He was yanking your chain. He would never uphold DOMA. He may not love the idea of gay marriage, but he hates
congressional overreaching, and Congress doesn't have the power to legislate
marriage. The issue isn't privacy.
CHRISTOPHER MULREADY
Or equal protection.
EVELYN BAKER LANG
It's enumerated powers. He'll have an easier time knocking down DOMA
than I will.
CHRISTOPHER MULREADY
Lack of imagination on your part, if I may be so
bold.
My point? President Clinton signed DOMA into law in
1996, believing even then that it was unconstitutional. The popular media has been talking seriously
about the issues with DOMA, explaining how and why both liberals and conservatives
can agree that it is unconstitutional, much as we saw displayed in today’s oral
arguments, since at least 2004. And the
time is now to declare that DOMA is unconstitutional, even if federalism and
not equal protection is the basis for that decision.
Today, in front of the
Supreme Court, protestors chanted, “What do we want? Equality!
When do we want it? Now!” And
that’s because the injustice DOMA engenders occurs every day, or, according to
Justice Ginsburg in today’s arguments, “[in]1100 statutes . .. [DOMA] affects
every area of life.” According to
Solicitor General Verrilli, “What Section 3 does is exclude from an array of Federal
benefits lawfully married couples. That means that the spouse of a soldier
killed in the line of duty cannot receive the dignity and solace of an official
notification of next of kin.”
Even
with these kinds of stakes, Harvard Law Professor Vicki Jackson (appointed by the Court to make the
argument, to be sure, but the very appointment signaling that the Court was
considering this view) argued that the Court should not decide the case, even
in light of the critical nature of the issue, saying, “While it is natural to
want to reach the merits of such a significant issue, this natural urge must be
put aside because, however important the constitutional question, Article III
prevents its decision here and requires this Court to await another case,
another day, to decide the question.”
According
to Paul Clement (arguing for BLAG, a group from the House of Representatives
seeking to uphold DOMA), we should “[a]llow the democratic process to continue.”
But to let the wheels of justice turn slowly across these fifty United States
disregards the notion that the rule of law affects attitudes, attitudes that
may otherwise be resistant to change.
Without DOMA to look to for support, those opposing equal rights might
have to consider reasonable arguments in favor of equality. Even better, were the Supreme Court to strike
DOMA down on equal protection grounds, it would signal to the country that
discrimination on the basis of sexual orientation is not only unconstitutional,
it’s really, really uncool.
The West Wing enunciated all of the
arguments, and in only about three minutes, to boot. DOMA is unconstitutional because the federal
government should be out of the marriage business. DOMA is unconstitutional because
the federal government is not free to treat straight and gay couples
differently.