Nel's New Day

March 28, 2013

DOMA = ‘Skim-Milk Marriage’

Exchanges during the Supreme Court during the last two days demonstrate the dinosaur opposition toward marriage equality of conservatives and the understanding regarding discrimination of  banning same-sex marriage with the middle ground between these two extremes.

No one is likely to know rulings on these two cases about allowing same-sex couples to marry in this country until June when SCOTUS contemplates recessing, but most people interested in the issue are guessing. I’m going with the majority of the media: couples in California will most likely be able to get married, and DOMA will be overturned. No more, no less. These decisions will result in a multitude of lawsuits while governments try to sort out this chaos.

Five justices–Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—appeared to support the position that the group of citizens who sponsored and voted for Proposition 8 had no legal standing to bring the case to the Supreme Court. If the five agree to dismiss the case, Prop 8 would probably still be overturned in California, but there would be no precedent on the issue for the rest of the country.

Meanwhile, I love the statements, clueless or otherwise, made within the arguments. My absolute favorite came from Justice Ginsberg when she said that DOMA provided “two kinds of marriage; the full marriage, and then this sort of skim-milk marriage.”

Ginsberg said this to Paul Clement, the lawyer that my tax dollars are paying to enshrine discrimination against me personally as he argues the continuance of DOMA: “Mr. Clement, if we are totally for the States’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people—if that set of attributes, one might well ask, What kind of marriage is this?”

Clement tried to explain that DOMA was not intended to exclude same-sex couples but was just enacted to define marriage for federal purposes. Justice Kagan didn’t accept his argument, however, saying that Congress’s passing was “infected by dislike, by fear, by animus.”  She said, “Well, is what happened in 1996—and I’m going to quote from the House report here—is that ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”’

Solicitor General Donald Verrilli disagreed with Clement: “There are no genuine administrative benefits to DOMA. If anything, Section 3 of DOMA makes federal administration more difficult [because of a patchwork of state laws]. And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that.”

Justice Sotomayor said, “So they can create a class they don’t like—here, homosexuals—or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as married?”

In the argument that SCOTUS should let the states decide a definition of marriage, lawyer Roberta Kaplan said, “You’re not taking it one step at a time, you’re not promoting caution, you’re putting a stop button on it, and you’re having discrimination for the first time in our country’s history against a class of married couples.”

The above statements were all made during the DOMA argument. Prop 8 arguments the day before sometimes got a bit saltier.

In an exchange with the pro-Prop 8, anti-marriage equality lawyer, Charles Cooper, Justice Kagan asked him how letting gay couples marry harmed traditional marriages. “How does this cause and effect work?”

Cooper answered, “It will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” According to Cooper, the key to marriage is procreation. [One-third of the Supreme Court’s sitting justices, married at one time, did not procreate. In fact, George and Martha Washington didn’t procreate.]

Justice Stephen Breyer responded, “I mean, there are lots of people who get married who can’t have children. To take a state that does allow adoption and say—there, what is the justification for saying no gay marriage? Certainly not the one you said, is it?” [Breyer’s statement was followed by Justice Samuel Alito awkwardly trying to make a joke about Strom Thurmond having a child in his seventies.]

Kagan agreed: “I can just assure you, if both the woman and the man are over the age of fifty-five, there are not a lot of children coming out of that marriage.”

In questioning discrimination against LGBT people , Chief Justice John Roberts tried to point out powerful the LGBT lobby: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.” [Endorse maybe, but 31 states will have constitutional amendments declaring that marriage is “between one man and one woman,” and only nine states have legalized marriage equality.]

Justice Alito tried to point out that the court shouldn’t rule in favor of marriage equality because it is so new: “But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we—we are not—we do not have the ability to see the future.” [The first same-sex couple came to SCOTUS over 40 years ago in Baker v. Nelson. Marriage equality is not an institution in the United States because the Supreme Court and Congress prevented it.]

“Same-sex marriage is very new,” Justice Alito complained. “It may turn out to be a good thing; it may turn out not to be a good thing.” [Maureen Dowd asked, “If the standard is that marriage always has to be ‘a good thing,’ would heterosexuals pass?]

“Same-sex couples have every other right,” Roberts said, “It’s just about the label in this case.” [This piece of wisdom came from the Chief Justice of the U.S. Supreme Court?!]

Verrilli reminded the justices that the argument by opponents of interracial marriage in Loving v. Virginia was to delay because “the social science is still uncertain about how biracial children will fare in this world.” [The court’s rationale is exceptionally ironic when one considers that a biracial person born before Loving now sits in the White House.]

Justice Kennedy demonstrated that he understood the plight of many families: “There are some forty thousand children in California, according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

Justices spent time during the Prop 8 trying to figure out how they got into the situation of arguing the case.  “I just wonder if the case was properly granted,” said Justice Kennedy.

Justice Sotomayor seemed to agree: “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”

Theodore B. Olson, lawyer for the two couples fighting for marriage equality, said about Prop 8, “It walls off gays and lesbians from marriage, the most important relation in life thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not O.K.”

When Cooper rose to give his rebuttal at the end of the session, Justice Kennedy asked the first question. “You might address,” the justice said, “why you think we should take and decide this case.”

Justice Sotomayor said it all in her question for Prop 8’s lawyer, Cooper: “Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits?”

And Cooper responded, “Your Honor. I cannot.”

Justice Clarence Thomas said the same thing both days: nothing.


The case challenging DOMA was brought by Edith Windsor, an 83-year-old New York widow who inherited a large estate when her spouse died. Because her spouse was a woman, she faced a federal estate tax of $363,000. Justice Ginsberg’s “skim-milk” argument came from Clement’s argument that DOMA prevents states from “opening up an additional class of beneficiaries,” i.e. married gay couples “that get additional federal benefits.” The 80-year-old justice took exception to the term “additional benefits” immediately following Kennedy’s statement that there are at least 1,100 federal statutes that affect married couples. Every same-sex couple prevented from a partner’s Social Security benefits, tax-free health benefits, freedom from estate tax, etc. etc.

[During your leisure time, check out these 60 best anti-DOMA signs.]



  1. What a shock that Justice Thomas said Nothing! Imagine how the quality of the court would increase exponentially if Scalia and Thomas were off the court?


    Comment by Michael Hulshof-Schmidt — March 30, 2013 @ 8:10 AM | Reply

  2. It is evidence of the strong survival instinct of gay people that your presentation of this tragically absurd effort to keep us in our despised place made me laugh out loud. One of your best!!!


    Comment by Lee Lynch — March 28, 2013 @ 11:08 PM | Reply

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