Edie Windsor and her lawyers have filed their final brief urging the Supreme Court to declare the Defense of Marriage Act unconstitutional. When Windsor’s wife died, she was forced to pay $363,053 in federal estate taxes because their marriage was not recognized under DOMA. In the brief, Windsor’s lawyers point out that House Republicans have invented new explanations for why they originally passed DOMA, but the original record shows that their goal was to discriminate against people who are gay, lesbian, and bisexual.
For example, various lawmakers referred to “moral disapproval of homosexuality,” suggested homosexuality is based on “perversion” and “lust,” and called homosexuality “inherently destructive,” with allusions to “promiscuity, perversion, hedonism, narcissism, depravity, and sin.” Not only was the clear target of the law the “unnatural” behavior of same-sex couples, but Congress did not even consider the financial impact of the law. Indeed, as the brief points out, the very name of the law, the “Defense of Marriage Act,” demonstrates that its supporters viewed gay people as a threat. Here’s how the brief calls out these missteps:
DOMA was enacted out of “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” The Act was rushed through Congress at a time when there was no realistic prospect of gay couples getting married in the near future anywhere, even in Hawaii.
The legislative history is replete with language of panic and fear, as well as stereotypical thinking about the purported dangers of gay people or their relationships. Congress gave no consideration to the ways DOMA would impact the thousands of federal programs implicated. It made no attempt to assess DOMA’s impact on the federal budget. It expended no effort to address the obvious irrational consequences of DOMA’s sweeping applicability, such as DOMA’s exclusion of married gay couples from federal financial disclosure requirements or conflict of interest rules. The very language of its title indicates that DOMA was enacted to defend or “guard against” people who appear to be different.
The “post hoc” arguments that House Republicans have since proffered to explain a different intention behind DOMA include the “fantastical” idea that preventing gay couples from marrying will somehow encourage heterosexual couples to marry have children. The brief effectively debunks this claim:
This far-fetched theory has nothing to do with DOMA. It is irrational, fantastical thinking to believe that the federal government’s decision to treat married gay couples as unmarried under federal law will encourage straight couples to marry before having children… Put more concretely, no straight couple would decide to marry or have children simply because Ms. Windsor had to pay $363,053 in federal estate taxes. Conversely, no straight couple would call off their wedding if Ms. Windsor receives a tax refund.
Indeed, there is no clear rationale for the discrimination against Ms. Windsor or any same-sex couple except the desire to treat the gay, lesbian, and bisexual community as second-class citizens. Combined with the Department of Justice’s arguments against DOMA, Windsor’s case is quite strong, while House Republicans have nothing but spin, distortion, and stereotypes.