Is DOMA a Bill of Attainder?

Novel legal ideas are always useful in our nation of Common Law. It’s when you can take this or that precedent, seemingly unrelated to your own case, and weave them into a fine narrative to present to judges so that new law is in effect made, or old laws are spread to cover more people and situations. Stare Decisis, indeed. So, first let me present what I found at

Always a fair enough source, though I’m sure there’s more learned commentary elsewhere:

>>The United States Constitution forbids bills of attainder under Article I, Section 9. It was considered an excess or abuse by the British monarchy and Parliament. No bills of attainder have been passed since 1798 in the UK. Attainder as such was also a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.[10] The provision forbidding state law bills of attainder, Article I, Section 10, reflects the importance that the framers attached to this issue, since the unamended constitution imposes very few restrictions on state governments’ power.

Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9; Clause 3 is “No Bill of Attainder or ex post facto Law shall be passed”. The constitution of every State also expressly forbids bills of attainder. For example, Wisconsin’s constitution Article I, Section 12 reads:

No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.

Contrast this with the subtly more modern variation of the Texas version: Article 1 (Titled Bill of Rights) Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Impairing Obligation of Contracts: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made”.


The Court changed its “bill of attainder test” in 1946. In United States v. Lovett, 328 U.S. 303 (1946), the Court confronted a federal law which named three people as subversive and excluded them from federal employment. Previously, the Court had held that lack of judicial trial and the narrow way in which the law rationally achieved its goals were the only tests. But the Lovett Court said that a bill of attainder 1) Specifically identified the people to be punished; 2) Imposed punishment; and 3) Did so without benefit of judicial trial.[15] All three new prongs of the bill of attainder test were met in Lovett.


OK, then, that’s the lay of the law. No Bills of Attainder. And I think, isn’t DOMA such a law? Why, yes, I think so – DOMA is a bill of attainder, gaddamnit. After all, in this Lovett case the Court made a distinct test to see if a law was Attainder indeed. And look at the parties to the federal law in Lovett – it names three people as subversive. There, right there – gays are covered under that bit – we are labeled subversive indeed. Not just “three” of us, of course – but each and every last one of us without exception with no right to question the judgment. We’re accused of subversion by our existence, which is said to cause attacking of families, marriage, nation, religion, society, government, God and who knows who else, to the point of being named a “domestic terrorist” by the man who claims to have engineered DOMA (Tony Perkins of the Family Research Council, of course.)

In fact, DOMA is specifically a law designed to stop our subversive activities, like, oh, filing a joint tax return and leaving an inheritance, and saying “I do.” And “I do” muttered by a gay couple is subversion indeed, as some say. Why, if we were allowed, the whole place come tumbling down, it’s said. And said clearly and often. Our kissing is subversive too, to the point of politicians still trying to outlaw it.

So, DOMA specifically states whom is to be punished – gay folks under the rubric of “same-sex marriage” and perhaps even “homosexual” of course. It’s to be outlawed as was membership in any subversive organization. Indeed, we’re told we “choose” to join this subversive “lobby” of political pushing “agenda” disco bunnies. All of our most craven opponents are quite sure it’s even a political party position, this being gay. Not much different than being a Communist, to hear some tell it, which were the subversives in Lovett, of course.

It also specifically imposes the punishment – no marriage, denial of federal benefits (not that far separate anymore from federal employment,) and also imposes special tax rates for us (as singles not couples if we are) which are higher than they would be. This might run afoul of the “takings” rulings also (a favorite of conservatives, and we can use it too? Cool!) Though perhaps Kelo can be thrown against us – you know, our property taken for the public good and tough noogies to you folks. Another angle, though, to be sure. It’s an unlawful takings. Indeed, we could, for poetry of course, claim it’s stealing our very hearts and loves and sacred honor.

And for sure DOMA does all this – did this, even, when it was enacted – without any benefit of judicial trial. No trial whatsoever was ever held about whether I was a subversive before I was declared one. I got a parking ticket once or twice, though I don’t think that counts under subversion. Indeed, no gay person has ever been tried and found guilty of any of the subversive activities we are accused of – in fact, there really aren’t even any statutes that forthrightly state that we are subversive – except of course DOMA. And DADT, but that seems to be gone now. And DOMA was indeed passed specifically to come after only gay people. It’s not like it stops divorce or adultery or remarriage or anything. And I’m not sure about the “ex-post-facto” thing – gay couples were around long before the law was passed to outlaw them.

As for “retroactive” – well, when Prop 8 was passed it retroactively ended all the gay marriages that had taken place in the brief window of opportunity. And in other states like Iowa and New Hampshire moves are afoot to retroactively end any lawful marriages that are taking place right now. And too, there’s an ex-post-facto and a dash of retroactive lingering when a Massachusetts couple alights in Houston Texas to live there – for boom – retroactively, the gay marriage is automatically dissolved in legal fact, even if not in legal word.

And so it seems to, in my non-legal put awfully pushy legalistic thinking, that DOMA does meet the three tests that the Court did rule have to be met to be a Bill of Attainder under Lovett. Here, let me repeat it:

But the Lovett Court said that a bill of attainder 1) Specifically identified the people to be punished; 2) Imposed punishment; and 3) Did so without benefit of judicial trial.

And we are identified as the people to be punished, the punishment is imposed, and it dose so without benefit of any judicial trial. Ipso facto if you ask me, but I’m cranky.

I don’t know, maybe not. It just looks nice and novel, and hell, we got nothing left to lose, throw it in the mix amid the usual mush about “due process.” The due process argument is our weakest, but hey, it’s what our “leaders” seem to like to use.

I argued way back in the early 1990s to a gay rights group in Florida that we ought to claim that laws against are a violation of our right to freely practice our religious beliefs coupled with the government enshrining in law one religion’s beliefs against ours. A First Amendment bit. I called laws against gay folks unconstitutional because we were in effect denied the right to legally assemble (And that was after the bar raids stopped, but Bowers V Hardwick was still the law – for if we could not even assemble two by two in one’s own home, well, then, that seemed clear to me. Ah, but then I was called a radical by gay folks!

And when I said that we gays should sue the attorney generals of every county in Florida as well as all the police and sheriff departments and the governor himself for dereliction of duty for not enforcing the “Can’t serve alcohol to known homosexuals” law of that state – well, I was chased away as, oddly, being subversive indeed. And possibly bringing on a backlash from people who hate us so much they want us gone from the nation by any means they can concoct including death do us part.

And look, every state has a nifty “bill of attainder” provision too – to go after the mini-DOMAs.

And I’m not even going to get into the wonderful thing that laws against impairing of obligations of contracts is not allowed either. For certain, though, our contracts we must use under commercial law and business law to effect what we’re denied under family law – pretty much the same result, but just a little, well, a little attained – they are impaired don’t you think? So, yep, a bill of attainder, and unconstitutional very clearly so. Get to work gay lawyers, get to work.


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