doma same sex marriage

photo: BrittneyBush via Flcikr

The DOJ has filed their appellate brief before the US 1st Circuit Court of Appeals in Boston, defending DOMA. This brief [PDF] speaks from a position of privilege, whining  “Oh, the burdens that we would have to carry, if DOMA is struck down. Oh, the costs we would incur. Oh, the stuff we would have to deal with.”

Please.

Every same-sex couple has exactly these burdens and more imposed on them by DOMA, as they try to navigate a system that says “you get these rights but not those, you get these obligations but are free from those, and you get these privileges and not those.”

This kind of arguments about the federal burdens might carry more weight if the federal government didn’t already deal with the burdens of multiple state definitions, procedures, and costs in other federal programs. Using the logic of this brief, you’d never see federal government websites that say things like this:

[The Centers for Medicare and Medicaid Services] reviews State plan amendment reimbursement methodologies for services provided under the State plan for consistency with Section 1902(a)(30)(A) of the Social Security Act (the Act) and other applicable federal statutes and regulations.  Section 1902(a)(30)(A) of the Act requires that States “assure that payments are consistent with efficiency, economy and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” . . .

In general, CMS reviews State payment methodologies and supporting documentation to ensure that the State plan methodology may be audited and is comprehensively described and that payment rates are economic, efficient and sufficient to attract willing and qualified providers.  In addition, the CFR requires that Medicaid payments to qualified hospitals, nursing facilities, ICF/MRs, and clinics not exceed a reasonable estimate of the amount that Medicare would pay for equivalent services in the aggregate within State owned or operated, non-State owned or operated and private facilities. . .

Section 1903(a) of the Social Security Act directs payment of Federal financial participation (FFP), at different matching rates, for amounts “found necessary by the Secretary for the proper and efficient administration of the State plan.”

That sounds a whole lot more burdensome than checking to see whether the person claiming to be married actually is, under the laws of that state. Funny how the federal government has no trouble dealing with these burdens, but handling differences in marriage laws is apparently too much.

The other justification the DOJ cites is to maintain the status quo, during a time of social change and upheaval with regard to the definition of marriage. Imagine, though, if this logic were applied during the 50s and 60s, as state laws around mixed-race marriages were shifting. Funny, but the federal government had no trouble then dealing with a changing status quo.

It’s interesting to see what isn’t in this brief. There’s no mention of Loving v. Virginia, for instance, nor is there any reference to the logic put forward by Judge Walker in Perry v. Schwarzenegger, though the facts of the case are cited as an example of the upheaval in the status quo. Thankfully, there’s also no mention of incest, bestiality, or pedophilia, so at least the brief writers have learned a few things over the last year or so.

GLAD’s reaction to the brief was quite simple:

GLAD’s lead counsel Mary Bonauto said, ““We see nothing really new in this brief, which reiterates many of the same arguments the government made in the District Court. We’re prepared to meet these arguments head-on, and bring to an end the discrimination that is suffered by married same-sex couples like our plaintiffs and that DOJ has admitted is caused by DOMA.” GLAD’s response is due March 1.

That’s about it. The DOJ said these things before and lost. Now they’re saying them again, hoping for a different answer.

There’s obviously a lot more that can be said, and will be. But if GLAD and other proponents of marriage equality are looking for an example of people speaking arrogantly from a position of privilege, the DOJ has done them a great favor by handing them a wonderful exhibit to point to in their rebuttal brief.