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.
NEXT PAGE: BLAG lawyers argue gays have no history.
Next, BLAG’s lawyers argue that what it means to be gay, lesbian or bisexual is ill-defined, saying non-heterosexuals “are amorphous” and the terms gay and lesbian “do not adequately describe a particular class.”
BLAG lawyers also charge that gay people as a group lack a history of discrimination: “a consequence of the fact that homosexuality – as a distinct category or class – was not even recognized in the United States until the late nineteenth century.” This, they charge, means that lesbian, gay and bisexual people cannot then have faced a history of discrimination if their history is so brief.
This aspect of the brief has royally ticked off quite a few, including Brian Moulton over at the Human Rights Campaign who writes, “Apparently, in their minds, because it took so long for a courageous few to begin identifying themselves as gay or lesbian –in the face of the overwhelming risk of losing employment, having custody of children torn away, being ostracized from friends and family, and even becoming a victim of hate violence or spending years in prison— there is insufficient history of discrimination to support heightened scrutiny.”
I’d also add that religious conservatives often parrot that every civilization to embrace homosexuality has crumbled, citing the Roman Empire as one example. This may be historically and factually dubious on several counts but it is rather useful in this context because it demonstrates at least an elementary acknowledgement that homosexuality has a long history prior to the coining of the term and the defining of a modern LGBT community.
NEXT PAGE: Gays must be politically powerful because of recent victories.
The very fact that lesbian, gay and bisexual people are overturning laws that discriminate against them should also count against a claim to political powerlessness, argue House lawyers:
A spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless. A recent poll showed that more than two-thirds of Americans would vote for a “well-qualified gay candidate for president if he or she were nominated by their [sic] party.”
In the last weeks and months, the first openly gay male federal judge was confirmed by the Senate by an overwhelming majority.
President Obama announced his support of a Senate bill to repeal DOMA.
The President also nominated his fourth openly-gay candidate for a United States District Court judgeship. The State of New York passed a law legalizing gay marriage over the opposition of the New York Catholic Conference and other groups.
The Governor of California signed legislation requiring California’s public school textbooks to include the historical contributions of lesbian, gay, bisexual, and transgendered (“LGBT”) Americans. Rhode Island passed a bill instituting civil unions for same-sex couples.
And, finally, President Obama took the final step in repealing the so-called “Don’t Ask, Don’t Tell” policy.
This remarkable collection of political victories covers just the past month. Thus, gays and lesbians cannot be labeled “politically powerless” without draining that phrase of all meaning.
One could interject that these recent victories having taken years to achieve and that, for instance, only last month House Speaker John Boehner categorically ruled out allowing a DOMA repeal hearing in the House as a mirror the Senate hearing, effectively ending the legislative repeal effort right there. Add to this that lawmakers still have not passed a federal Employment Non-Discrimination Act so in many states it is still legal to fire someone on grounds of their sexual orientation, and one can quickly build a contrary picture.
BLAG lawyers also take a swipe at the Plaintiff with the following:
Plaintiff appears oblivious to the irony of maintaining that homosexuals have limited political power in a case in which her position is supported by both the State of New York and the United States Department of Justice.
That the state of New York and the U.S. justice department have determined that DOMA is unconstitutional does not prove political power, rather it demonstrates an openness to considering the guarantees of a robust constitution.
Most of the memo’s energy is directed to arguing that sexual orientation should not be given “heightened scrutiny,” the medium level of judicial review that would see BLAG’s lawyers have to expend greater effort to fight to keep DOMA. You can read more on the particulars of scrutiny here.