As he defends the federal gay marriage ban, Solicitor General Paul Clement wants you to forget everything he said last week about the federal health care law.
Congress has no constitutional authority to punish people who don’t want to have health insurance, Paul Clement argued last week before the United States Supreme Court. This week? The heralded attorney is arguing, to another panel of federal judges, that Congress has plenty of constitutional authority to punish people who don’t want to marry someone of the opposite sex. Last week, Clement defended states’ rights and labeled as “unprecedented” the federal health care policy. This week, he says that Congress can dictate terms of a federal marriage policy over the objections of states which have legalized same-sex marriage.
Welcome to the forlorn world of the Defense of Marriage Act, the teetering federal law which defines marriage as solely that between a man and a woman and thus deprives same-sex married couples of certain federal rights and privileges. This is the law that President Bill Clinton triangulated onto the books six weeks before the 1996 election. It is the law whose guts were fileted in 2010 by an esteemed federal trial judge. It is the law the Obama Administration last year all but gave up defending. And it may just be the law, with all due respect to Proposition 8, that gets same-sex marriage to the Supreme Court first.
On Wednesday, before the 1st U.S. Circuit Court of Appeals in Boston, it will be left to the House of Representatives to defend the honor of the statute. Led by the indefatigable Clement (watching him these past few weeks is like watching Jerry Lewis in a Jerry Lewis movie), the bipartisan lawmakers’ group (spending your tax dollars) seeks to overturn U.S. District Judge Joseph Tauro’s 2010 decision striking down a key provision of the statute. If the House loses this appeal, if a federalcircuit declares the DOMA unconstitutional, the Supreme Court would be far more likely to intervene. Put that on your potential calendar for next term.