Appeals Court Begins Windsor DOMA Case

Yesterday the Second Circuit Court of Appeals began hearing Edith Windsor’s DOMA case in New York.  Chris Geidner reports that the legal team hired by House GOP immediately opened with references to polygamy.

The lawyer for House Republican leaders had to reach all the way back to 1885 today when asked where the “traditional understanding” of marriage could be found in federal case law — referring to a case dealing with polygamy in the Utah territory. That case, decided about polygamy in Utah before women were guaranteed the right to vote, came only 20 years after the end of the Civil War and more than 80 years before the court would strike down bans on interracial marriage. Today, it was one of the underlying arguments in House Republican leaders’ case that the Supreme Court recognizes a “traditional understanding” of marriage that the Defense of Marriage Act is seeking to uphold. The Republicans’ lawyer, Paul Clement, never used the word “polygamy.” But the 1885 case and other government efforts aimed at stopping polygamy came up throughout today’s hearing about DOMA’s constitutionality.

The main message from Clement: “There’s no way to preserve the definition of marriage [as one man and one woman] other than by preserving the definition. It becomes somewhat circular.”