Joe Sudbay reports that the Justice Department has filed a brief in support of Edie Windsor’s challenge to the 1996 Defense of Marriage Act. Windsor was forced to pay exorbitant federal inheritance taxes after her wife passed away because the government could not legally recognize their 44-year relationship (the couple married in Canada in May of 2007 and their union was recognized in New York). Since President Obama announced that he would no longer be upholding the constitutionality of the Act, House Speaker John Beohner (R-OH) has hired former solicitor general Paul Clement to defend the measure from legal challenges.
In its brief, the government argues that Section 3 of DOMA — which defines “marriage” as a legal union between a man and woman for federal purposes — is inconsistent with the equal protections clause, “as it denies legally married same-sex couples federal benefits that are available to similarly situated opposite-sex couples.” The document reviews the the long history of “discrimination based on prejudice and stereotypes” against LGBT people from the federal and state governments and private parties, and articulates the following equality-affirming arguments:
1) DOMA IS GROUNDED IN ANIMUS TOWARD GAYS: “[O]ne of the goals of DOMA was to provide gays and lesbians with an incentive to abandon or at least to hide from view a core aspect of their identities, which legislators regarded as immoral and inferior. This record evidences the kind of animus and stereotype-based thinking that the Equal Protection Clause is designed to guard against.”
2) ORIENTATION IS NOT RELATED TO ABILITY TO PERFORM: “Just as a person’s gender, race, or religion does not bear an inherent relation to a person’s ability or capacity to contribute to society, a person’s sexual orientation bears no inherent relation to his or her ability to perform or contribute.”
3) ORIENTATION IS AN IMMUTABLE CHARACTERISTIC: “Over ten years ago, in considering whether gays and lesbians constituted a “particular social group” for asylum purposes, the Ninth Circuit recognized that “[s]exual orientation and sexual identity are immutable,” and that “[h]omosexuality is as deeply ingrained as heterosexuality.” … “[E]fforts to change an individual’s sexual orientation are generally futile and potentially dangerous to an individual’s well-being.”
4) DISCRIMINATION ON ‘RELIGIOUS GROUNDS’ IS UNCONSTITUTIONAL: “And even if Congress’s opposition to gay and lesbian relationships could be understood as reflecting moral or religious objections, that would remain an impermissible basis for sexual-orientation discrimination…Discouraging homosexuality, in other words, is not a governmental interest that justifies sexual orientation discrimination.”
5) DOMA IS UNRELATED TO DEFENDING TRADITIONAL MARRIAGE: “Section 3 denies benefits to couples who are already legally married in their own states, on the basis of their sexual orientation and not their marital status. Thus, there is not the ‘substantial relationship’ required under heightened scrutiny between an end of defending ‘traditional’ marriage and the means employed by Section 3.”
6) GAYS MAKE GOOD PARENTS: “[T]here is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing. To the contrary, many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting based on their conclusions, supported by numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.”
7) DOMA HURTS CHILDREN: “Section 3 does nothing to affect the stability of heterosexual marriages or the child-rearing practices of heterosexual married couples. Instead, it denies the children of same-sex couples what Congress sees as the benefits of the stable home life produced by legally recognized marriage, and therefore, on Congress’s own account, undermines rather than advances an interest in promoting child welfare.”
8) ‘RESPONSIBLE PROCREATION’ NOT A MARRIAGE PREREQUISITE “[T]he ability to procreate has never been a requirement of marriage or of eligibility for federal marriage benefits; opposite- sex couples who cannot procreate for reasons related to age or other physical characteristics are permitted to marry and to receive federal marriage benefits.”
Read the full brief here.