The U.S. House’s team of lawyers defending the Defense of Marriage Act (DOMA) submitted a court memorandum Monday in which they argued that lesbian, gay and bisexual people do not have a history of discrimination, that they are not a cognizable group, and that gays are politically powerful.
The brief was filed by lawyer Paul Clement and team on behalf of the Bipartisan Legal Advisory Group of the House of Representatives in the case Windsor v. United States where New York resident Edie Windsor is challenging the exorbitantly high inheritance tax penalty on her late wife’s estate levied because DOMA means the federal government treats married same–sex partners as legal strangers.
Both President Obama and the attorney general for the state of New York have filed briefs in support of the plaintiff who is calling for a summary judgement on the constitutionality of DOMA from the United States District Court for the Southern District of New York. BLAG’s memo argues against this.
In the memorandum, BLAG lawyers charge that President Obama and Attorney General Eric Holder are incorrect in not defending DOMA and are in fact cherry picking data by refusing to defend the Defense of Marriage Act on the grounds that sexuality is an immutable characteristic. BLAG lawyers argue that there is no proven biological basis for this statement, and that scientists have not determined a cause for homosexuality, writing, ”Whether a classification is ‘immutable’ is of course a legal conclusion – not a scientific one – and the Attorney General’s selective reading of scientific evidence warrants no deference from this Court. His conclusion and the Plaintiff’s argument are also both wrong.”
As is the case with much in the BLAG memo however, one can easily turn this around and say that there is no accepted scientific proof that homosexuality is either a choice or a condition that can be overcome, and therefore a view of homosexuality as immutable — a characteristic beyond a person’s control — seems well supported and in keeping with a resounding wealth of scientific and psychological studies. I would also add that just because science has not yet determined a concrete biological component to homosexuality does not mean that there is an absence of evidence to suggest there is at least some biological factor – to suggest otherwise, as BLAG’s lawyers seem to do, is intellectually dishonest.
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