Left Side of the Aisle #94 - Part 3

Citizens United and DOMA

Onto something else. Since I was speaking of Citizens United, which we often forget is an organization, and of same-sex marriage rights, how fitting that they come together in a bit of news about the case before the Supreme Court about the Defense of Marriage Act, or DOMA. DOMA is the federal law which limits the definition of marriage to one man and one woman for determining eligibility for benefits for all federal programs.

Citizens United has filed an amicus brief in support of DOMA, arguing that it is constitutional. Okay, fine, whatever. The issue is the argument the group makes in support of that claim. It's an illustration of how the right wing will openly, unhesitatingly, advance the most wild-eyed, radical, bizarro-world propositions for the very purpose of making those wild-eyed, radical, bizarro-world propositions part of common discourse, to make them seem if only by some level of familiarity not nearly so vicious and reactionary and destructive as they really are. This is something that we need to be more aware of, something that we need to pay more attention to.

So what is the group arguing? Quoting the brief:

It is past time for this Court to bring to an end the line of atextual cases begun with Bolling v. Sharpe in 1954, and to place itself back under the authority of the Constitution as it is written.

Bolling v. Sharpe is a landmark civil rights case. The decision was announced the same day as the more famous case Brown v. Board of Education. That second decision cited the "equal protection" clause of the 14th Amendment in finding that "separate but equal" in public education was inherently unequal.

In Bolling, which was about discrimination in Washington, DC schools, the Court relied on the "due process" clause of the Fifth Amendment. It found that while

the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the States, the concepts of equal protection and due process are not mutually exclusive

because, the Court ruled, "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government" to not discriminate than it does on the individual states.

Citizens United declares this a "judicial fiction" and a "mythical component" of the Fifth Amendment. What it is arguing, that is, is that the Constitution provides no protection for anyone against discrimination by the federal government. The states, yes, the federal government, no. The feds are free to discriminate against anyone they want. Blacks, Latinos, women, Arabs, anyone - especially, it seems, gays and lesbians who want to get married to the people they love.

And what is it in particular about this case? Well, CU argues, quoting, "by secularizing marriage," the court of appeals in this case, which found DOMA unconstitutional, has

disregarded the historical interrelationship between Biblical Christianity and the American Constitutional Republic. ... Indeed, the courts give no regard whatsoever to the originator and definer of marriage who created us male and female (see Genesis 1:26-28) and enabled male and female couples to procreate offspring in his image (see Genesis 5:1-3).

So much for separation of church and state and freedom of religion. It's all about "Biblical Christianity." Apparently we can add Jews, Muslims, Hindus, Buddhists, and any other non-Christians to the list of people against who the feds can freely discriminate. Oh yeah, and atheists. Especially atheists.

Here's the point here, though: One commentator called it "one of the more hilarious briefings I've had the pleasure to derisively laugh at." But that misses the point. I don't think that Citizens United expects to win its argument here. The point right now is not to win it, but to raise it. To make it a topic of conversation, to legitimize it, again if only by familiarity, to make it an idea worthy of serious consideration by the Serious People in media and within the Beltway.

It is another item in the long list of items giving a lesson that the left, to my decades-long frustration, just refuses to learn: the right thinks long-term. They think strategically. And we have to do the same or we're going to keep getting rolled.

Sources:
http://www.huffingtonpost.com/2013/02/04/citizens-united-files-brief-support-doma-claims-landmark-desegregation-case-wrong_n_2617599.html
http://www.athensnews.com/ohio/blog-31359-equal-rights-pssshhh.html
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-307_resp_amcu_merits_cuncffp.authcheckdam.pdf
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0347_0497_ZS.html