The Obama administration has made history by filing a brief opposing the anti-gay Defense of Marriage Act in the United States Supreme Court case Windsor v United States.
In the brief, filed February 22, Solicitor General Donald Verrilli makes clear the Obama administration’s position that Section 3 of the 1996 federal Defense of Marriage Act should be struck down, saying:
Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.
This case centers on Edith “Edie” Windsor and her late spouse Thea Spyer. Residents of New York, they married in Toronto, Ontario, after a 40 year relationship. When Spyer died in 2009, New York had not yet legalized marriage equality within the state, however it had already moved to recognize those unions entered into beyond state borders, meaning that for the purpose of state law, Windsor and Spyer were indeed married.
However, the federal Defense of Marriage Act bans the federal government from recognizing same-sex marriages. This results in a number of hardships for same-sex couples, one of which Windsor was subject to when she was required to pay more than $363,000 in federal estate taxes on Spyer’s estate. Had the federal government recognized Windsor and Spyer’s marriage, she would not have been required to pay any of this particular tax.
Windsor filed a federal lawsuit against Section 3 of the Defense of Marriage Act in the U.S. District Court for the Southern District of New York. On June 6, 2012, Judge Barbara S. Jones ruled that, based on the lowest standard of judicial scrutiny, Section 3 of DOMA is unconstitutional because it violates Windsor’s Fifth Amendment right to equal protection.
The Republican-backed Bipartisan Legal Advice Group (BLAG), acting on behalf of the House to defend the law after the Obama administration refused to do so, filed an appeal with the Second Circuit, something that in itself would lead to a historic bit of legal precedent.
The Second Circuit returned its ruling in October 18, upholding the lower court’s finding that Section 3 indeed violates the US constitution. Furthermore, and in a marked departure from the lower court, the Second Circuit also declared that this case, dealing as it does with the immutable characteristic of sexual orientation, is worthy of what is known as “intermediate scrutiny” which sees the suspect law being subjected to a more rigorous test than would be needed under the standard rational basis review.
This was the first time that any federal court has invoked intermediate scrutiny for sexual orientation, something that potentially could be a massive boon to wider gay rights cases. It is no wonder, then, that the Obama administration–having originally fought for an elevated judicial reading — took time in this latest brief to further argue that the Supreme Court of the United States should consider an elevated level of scrutiny when it weighs the case:
Third, discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic. Sexual orientation is a core aspect of identity. Its expression, particularly in loving and committed relationships, is an “integral part of human freedom.” Lawrence, 539 U.S. at 577. There is broad scientific and medical consensus that sexual orientation is typically not a voluntary choice, and that efforts to change an individual’s sexual orientation are generally futile and potentially harmful. In any event, as long as it distinguishes a group, a characteristic may support application of heightened scrutiny even if — as with illegitimacy or alienage — it is subject to change or not readily visible.
The brief then proceeds to elegantly topple each of BLAG’s arguments, saying that the moral disapproval for homosexuality Congress felt at the time of enacting DOMA, or the albeit sincere religious beliefs that may have underpinned such motivations, is not suitable justification for DOMA’s encroachment on gay and lesbians’ constitutional rights. The brief goes on to lay out the historic persecution the gay community has faced and the political powerlessness LGB people as a group must still deal with.
Crucially, the brief also tackles BLAG’s assertion that DOMA encourages a legitimate aim: heterosexual procreation. The brief’s elegant knife slices through the waffle — the errant notion that gay parents are incapable of raising children as well as their heterosexual counterparts — to get to the heart of the matter: that Section 3 of DOMA “does nothing to promote responsible opposite-sex parenting or to prevent irresponsible same-sex parenting.” The brief goes on to state:
Denying federal benefits to married same-sex couples creates no additional incentive for heterosexual couples to marry, procreate, or raise children together; nor does it disturb any state-conferred parental rights for same-sex couples.
Oral arguments in this case begin March 27, 2013. The Supreme Court will soon also take up the Proposition 8, Hollingsworth v. Perry, case. The Obama administration has not yet indicated whether it will file a brief on behalf of plaintiffs. The deadline for that is February 28.
Care2 Success: Thank you to all the people who signed this Valentine’s Day Care2 petition drive asking the Obama administration to support Edith Windsor’s case. As of writing, a massive 33,297 people have signed!
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