House Court Memo: Gays Are Politically Powerful


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.

You can read the memo in full here.

Related Reading:

Leukemia Took My Partner & Now DOMA Will Take My Home (VIDEO)

Despite DADT Repeal, No Spousal Benefits for Gay Soldiers

Stephen Colbert: It Gets Better! (VIDEO)

Photo used under the MorgueFile user license, with thanks to mensatic.


Dianne Robertson
Dianne Robertson6 years ago

I'm wondering , if,indeed "gays are powerful" why have they been discriminated against for so long? Why are they the object of BULLYING? Why are the Republicans still fighting against ALL marriages being EQUAL? IS somebody fooling themselves? ME thinks SOMEBODY is spending A LOT of MONEY and EFFORT to supress the CIVIL RIGHTS of these POWERFUL AMERICAN CITIZENS.

Janet D. P.
Paul Pfeiffer6 years ago

Actually the Roman Empire fell after it became Christian and turned against freedom of sexuality and freedom of thought.

Mark Alan Dellavecchia

OK, so there are three main points to their argument that gay and bisexual people (#1) do not have a history of discrimination, (#2) they are not a cognizable group, and (#3) gays are politically powerful. Now, right off, doesn't #3 negate #2? I mean, they certainly seem to 'recognize' the LGBT community when it is out marching, protesting, and filing suits in courts.

It is true that the term "Homosexual(ity)" was coined in the late 19th century by a German psychologist, Karoly Maria Benkert. Prior to that, same sex people were just having relations(hips) with each other. It was only with the rise of the new science of psychology that a new term was needed to define and describe behaviors which already existed. It is unclear how much negative connotation was originally included. However, the Judeo-Christian prejudice was certainly present from the beginning.

As for civilizations crumbling: name one that hasn't - regardless of its stand on homosexuality? And, at the same time, are we not the latest morph of Western Civilization (with ever increasing contributions from Eastern Civilization) stretching back all the way to Greece, and possibly the earlier Minoans on Crete? Yes, empires, nations, countries come and go; but the civilization continues.

Sad to say, but they do seem like doomed men on a sinking ship.

Bobbie T.
Bobbie T6 years ago

Bravo!!! Britin J. but people beware what you wish for...remember the supremes are 5 to 4 homophobes. Keep letting your senators know you want DOMA ended..

Britin J.
Past Member 6 years ago

What a large pile of male bovine excerement! That's Bullsh!t for the pc crowd!

Hey Jack@sses: Here's another "straight" person for "gay" rights! I don't care who you want to "hook up" with, it's your business and your business alone. Just as what I do with anyone else is between me, my partner, and the four walls, so it should be with everyone else!

The majority of the populace supports the repeal of this horrble amendment, yet our "elected" officials continue to ignore it..... MMMMMM, thinking a change of the guard is in order....

Dawid Blyth
David B6 years ago

How does a disorder become a right?
The Nazis in Germany were also powerful politically and they were also an aberration!

Wayne M.
Wayne M6 years ago

We have heard these arguments before applied to other minorities. However, some of our recent victories for equality were won only after many long years of fighting for equality. This does not indicate political power, but rather hard political struggle. Furthermore, key victories for equality still need to be won. One of these in the United States is true equality in civil marriage rights. Another is ensuring all schools and school districts have and enforce anti-bullying policies that include strategies to confront homophobic and transphobic bullying.

And yes, we DO have a history– a very rich history of contributing to the betterment of society as well as struggle for equality and liberation. Just like opponents of civil rights for African Americans wanted to pretend there was no such thing as an African-American history, it is a convenient argument for those opposed to equality rights to say the same thing about LGBT people.

As for the argument that societies and cultures "that every civilization has crumbled" (and citing the Roman Empire) this is false. In fact, the Roman Empire crumbled after homosexuality was suppressed under Christian rule. This does not mean the Roman Empire crumbled as a result of Christianity either. It crumbled because it had expanded so much it was no longer able to maintain control and dominance over vast territories and diverse peoples. This was also the reason that led to the decline of the British Empire, the Third Reich

paul c.
paul c6 years ago

The brief is so absurd on the face of it that I'm optimistic about the overturn of DOMA. No court not unanimously stacked with raging homophobes could possibly buy this "logic."

Dan(iel) M.
Dan(iel) M6 years ago

One more reason DOMA must DIE !!!!!!!

donald baumgartner
donald B6 years ago