Joe Sudbay has posted another brief in a case filed by Edie Windsor, who is challenging the constitutionality of the 1996 Defense of Marriage Act. Windsor was forced to pay exorbitant federal inheritance taxes after her wife passed away because the government would not legally recognize their 44-year relationship. Since President Obama announced that he would no longer be upholding the constitutionality of Act, House Speaker John Beohner has taken charge and is spending tax payer dollars to defend the measure.
Last week, Bohener’s lawyer Paul Clement filed a brief dismissing Windsor’s motion for summary judgment. He argued 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. Windsor’s filing offered the testimonies of expert witnesses, which Clement deposed — but he had some trouble finding credible experts of his own. Instead, he identified the work of professional anti-gay activists like Maggie Gallagher, thus exempting them from deposition. Windsor’s lawyers have filed a motion asking the Court to strike the documents:
For example, BLAG relies on citations to books and articles for the truth of the matters asserted as evidence that a marriage between a male and a female provides a stable and nourishing framework for child-rearing (BLAG 56.1 ¶47.) The co-author of one of those books, Maggie Gallagher, has achieved some notoriety in the media as the President of the Institute for Marriage and Public Policy, one of the most prominent lobbying groups against equal rights for same-sex marriage. However, plaintiff was given no opportunity to cross examine Gallagher by using her own statements from her many public statements and appearances on this subject.
Indeed, Boehner seems to be running into the very same problem that David Boies– one half of the legal team challenging the constitutionality of Proposition 8 — identified during a now-infamous appearance on Face the Nation: anti-gay activists simply don’t have any evidence to make their case. “In a court of law you’ve got to come in and you’ve got to support those opinions, you’ve got to stand up under oath and cross-examination,” Boies explained. “There simply wasn’t any evidence, there weren’t any of those studies. There weren’t any empirical studies. That’s just made up. That’s junk science. It’s easy to say that on television. But a witness stand is a lonely place to lie. And when you come into court you can’t do that.”
During the trial, the proponents of Prop. 8 insisted that marriage is about channeling naturally procreative sexual conduct “into stable and enduring unions” in order to “minimize what I would call irresponsible procreation.” Asked to substantiate the claim, the defense replied, “your Honor, you don’t have to have evidence for this from these authorities” and suggested that “you need only go back to your chambers, your Honor, and pull down any dictionary, pull down any book that discusses marriage and you will find this procreative purpose at its heart wherever you go.”