This week we get a first look at how House Speaker John Boehner (R-OH) intends to defend the Defense of Marriage Act in court. If the briefs filed by attorney Paul Clement yesterday are any indication, the House Republicans will be pushing every anti-gay message possible to ensure the federal government continues to discriminate against same-sex couples. And of course, taxpayers are covering the bill for all these legal fees.
The case was brought by Edie Windsor, who was forced to pay exorbitant federal inheritance taxes when her partner of 44 years passed away because the government did not recognize their marriage under DOMA. Clement’s primary goal in defending the law is to prove that sexual orientation is not a characteristic that deserves “heightened scrutiny” — essentially, that gay people have not been historically subject to the kind of irrational discrimination that justifies constitutional protection. Doing so requires perpetuating common myths and misperceptions about sexual orientation to convince the court to toss out Edie’s lawsuit. Here are five attacks he makes against gays and lesbians pulled from two of the briefs filed this week (citations omitted):
1. GAYS HAVE NOT HISTORICALLY FACED DISCRIMINATION: Ignoring the fact that there have been laws against homosexuality for about as long as people have been publicly out, Clement argues that anti-gay discrimination is a “unique and relatively short-lived product of the twentieth century.” Worse yet, Clement argues that because things are getting better, any arguable history of discrimination is irrelevant:
Moreover, whatever the historical record of discrimination, the most striking factor is how quickly things are changing through the normal democratic processes on issues ranging from same-sex marriage to “Don’t Ask Don’t tell” and beyond. Historical discrimination alone never has been a basis for heightened scrutiny. Courts apply a multi-factor test that focuses on current reality and cautions against unnecessarily taking issues away from the normal democratic process.
2. SEXUAL ORIENTATION IS A CHOICE: Clement’s argument against the immutability of sexual orientation is shallow and duplicitous. He points out that people “choose” to identify as gay, confusing selecting one’s orientation with identifying with it. He suggests that if sexual orientation were immutable, it could be determined at birth. And most deceptively, he implies that because scientists have not agreed upon a clear cause for sexual orientation,they do not have consensus that it is not a conscious choice — they do. He even attempts to tell Ms. Windsor that she is wrong about her own sexual orientation:
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.
3. GAYS HAVE PLENTY OF POLITICAL POWER: Despite the fact that gays and lesbians constitute only a small percentage of the population and have been discriminated against by majority votes for decades, Clement tries to make the case that gays are not “politically powerless,” one of the qualifications for heightened scrutiny. By selectively highlighting successes and positive polling around LGBT equality, he paints a false picture of how rosy life is for gays and lesbians, snidely using the Department of Justice’s stance against DOMA to make his point:
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. In light of the latter’s longstanding duty to defend the constitutionality of federal statutes, its decision to decline to defend the constitutionality of DOMA, and instead adopt the very position advocated by Plaintiff, is particularly telling.
4. SAME-SEX COUPLES MAKE BAD PARENTS: One of Congress’s rationales for passing DOMA was the idea of “responsible procreation,” the idea that opposite-sex couples were better suited to raising children and thus marriage was a privilege reserved for them. In order to defend this idea, Clement must challenge scientific consensus on the existing research that shows same-sex parents to be equally as effective, and so he does:
Plaintiff’s claim of a clear expert consensus is overstated. Indeed, the evidence relied upon by Plaintiff’s own expert demonstrates that studies comparing gay or lesbian parents to heterosexual parents have serious flaws.
5. THE INSTITUTION OF MARRIAGE MUST BE PROTECTED: Implicit in all arguments against marriage equality is the fear-mongering claim that somehow allowing same-sex couples to marry will destroy the “institution” of marriage. Indeed, Clement has made it clear he will argue that marriage must be “defended” from “redefinition.” He also implies that the benefits that same-sex marriages would be afforded would be an undue financial burden for the government:
In this litigation, Defendant discusses in its motion to dismiss and memorandum in support thereof, and in its opposition to Plaintiff’s motion for summary judgment, the following particular rational justifications: defending and nurturing the institution of marriage by acting with proper caution in the face of the unknown consequences of a proposed novel redefinition of the foundational social institution of marriage; protecting the public fisc and preserving the balance struck by earlier Congresses in allocating federal burdens and benefits; maintaining consistency in eligibility for federal benefits based on marital status; defending and nurturing the institution of marriage by avoiding the creation of a social understanding that begetting and rearing children is not inextricably bound up with the institution of marriage; and defending and nurturing the institution of marriage by creating legal structures that make it more likely that children will be raised by parents of both sexes.
As expected, Boehner and Clement are protecting discrimination by reinforcing the myths and stereotypes upon which that discrimination is based. These briefs shine light on how ill-informed House Republicans are about the lives of gays and lesbians and how low they will sink to maintain discrimination against them. (HT: AMERICAblog Gay.)