Recent court challenges to the Defense of Marriage Act (DOMA) have raised questions about the rational basis for the law. To combat the “threat” of legalized gay marriage in Hawaii, Congress passed DOMA in 1996. Among other things, DOMA forbids the federal government from recognizing state-sanctioned same-sex marriages. At the time, the House Record listed four governmental interests:
1. Defending and nurturing the institution of traditional, heterosexual marriage.
2. Defending traditional notions of morality.
3. Protecting state sovereignty and democratic self-governance.
4. Preserving scarce government resources.
Recently, federal employees in legally recognized same-sex marriages challenged DOMA, saying it unconstitutionally denies benefits to their spouses. To justify laws like DOMA, courts will require the government to prove, at the very least, that the law has at least a rational basis. This is the lowest standard for judicial review. The district court that first heard the complaint rejected all four reasons as irrational. On appeal, the Department of Justice is proposing a new basis: DOMA preserves a status quo on a federal level while states experiment with the definition of marriage.
But is maintaining the status quo a rational basis in and of itself? The district court also found that argument unconvincing. It’s hard to argue that the government has a rational interest in consistency alone. Federal employees get divorced and married and remarried according to the disparate laws of all the states in the Union. The group of spouses receiving federal benefits is constantly in flux. So why is it suddenly rational to insist on consistency?
I think Ralph Waldo Emerson is the most persuasive on this point: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen, philosophers and divines.”