Should the Name of a Bill Matter

by Paul Siciliano


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In today's opinion in U.S. v. Windsor , the majority noted as evidence that the Defense of Marriage Act ("DOMA") was the result of animus towards gays was the name of the bill itself.  Justice Kennedy writes:

The stated purpose of the law was to promote was to promote an "interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws." Ibid.   Were there any doubt of this far-reaching purpose, the title of the Act confirms it:  The Defense of Marriage.

Granted, that is not the sole evidence of animus - but it is interesting that the majority would look at the title of the bill.  Justice Roberts, in dissent, takes a swipe at such reasoning: 

Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. [desire to harm homosexuals]

The only reason why I find this interesting is that reminds me of what Justice Scalia said during oral arguments with respect to the Votings Rights Case, Shelby County v. Holder .  During oral argument, Scalia ponders:

And this last enactment, not a single vote against it.  And the House is pretty much the same.  Now I don't think that's attributable to the fact that it is so much clearer now that we need this.  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. . . 
I don't think there is anything to be gained by any Senator to vote against continuation of this act. . .
Even the name of it is wonderful:  The Voting Rights Act.  Who is going to vote against that in the future?

Even though this line of argument did not make it in the Shelby County  decision, it is very likely that the majority believed that name of the act (and the fear of being labeled racist) played into the near unanimous reauthorization of the law in 2006.  Ultimately, the Court in Shelby County replaced the judgment of Congress with its own with respect for which areas should be subject to pre-clearance.  The Court concluded Congress did not do its job without providing much evidence that it did not other than numbers reflecting greater registration among African Americans.  The Court basically gave cover to those politicians who did not want to be viewed as racist or be against voting.

The same can be said of DOMA.  Who can ever be opposed to marriage?  Maybe politicians voted for the bill because they did not want to be labeled as anti-family.  Should that serve as the basis for striking it down.

But, Scalia takes a more cynical view of the naming of the bill DOMA.  He writes: 

I am sure these accusations [of animus] are quite untrue.  To be sure (as the majority points out), the legislation is called the Defense of Marriage Act.  But to defend traditional marriage is not to condemn, demean or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean or humiliate other constitutions.  To hurl such accusations so casually demeans this institution .

Scalia ignores the legislative record and purpose clearly stated in the bill.  He also ignores from what marriage is being defended.  You take these two cases, and what you see is Scalia engaging in reflection - blaming others for what you are doing.  Justice Scalia can look at the name of The Voting Rights Act and determine that those supporting it did so lightly for fear of being labeled racist, and those who supported DOMA, despite its intent, cannot be called homophobic because he can come up with a clever analogy based solely on the name of the bill without any context.  

I am glad that Justice Scalia has anointed himself the great arbiter of what the name of a bill means with respect to Congressional support.