Late last Friday night, the Department of Justice submitted a brief supporting Karen Golinski’s lawsuit challenging the Defense of Marriage Act so that her wife could receive health benefits. Chris Geidner at Metro Weekly called the brief “historic” for the way it admitted the federal government’s “regrettable role” in anti-LGBT discrimination and for the proactive role it took advocating for the application of heightened scrutiny for sexual orientation.
Below are 10 statements from the 31-page brief that demonstrate the Obama administration’s recognition of the history of discrimination the LGBT community has faced and the equality it deserves (PDF):
1. “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.”
Outlined in the brief is the government’s history of “intrusive investigatory techniques” for identifying “Homosexuals and Other Sex Perverts” so as to discriminate against gays and lesbians in employment beginning in the 1950’s. The State Department, FBI, and Postal Service all conspired in the investigations. Gay and lesbian noncitizens were also barred from entering the U.S. on the grounds that they were “persons of constitutional psychopathic inferiority,” “mentally defective,” or sexually deviant.
2. “This employment discrimination was interrelated with longstanding state law prohibitions on sodomy; the discrimination was frequently justified by the assumption that gays and lesbians had engaged in criminalized and immoral sexual conduct.”
Through sodomy laws and the discriminatory enforcement of liquor licensing laws, states could discriminate against gays and lesbians in employment, deny child custody and visitation rights to gay and lesbian parents, and prevent gay and lesbian people from associating freely.
3. “Efforts to combat discrimination against gays and lesbians also have led to significant political backlash, as evidenced by the long history of successful state and local initiatives repealing laws that protected gays and lesbians from discrimination.”
LGBT rights have often advanced in a one-step-forward/two-steps-back way because of the public backlash when protections are passed. The quintessential example was Anita Bryant’s “Save Our Children” campaign to overturn nondiscrimination protections for sexual orientation in Florida, Minnesota, Kansas, and Oregon in the late 1970’s. The brief also references the most recent example in Tennessee, where just two months ago the state legislature overturned the nondiscrimination protections the city of Nashville had passed.
4. “The pervasiveness of private animus against gays and lesbians is underscored by statistics showing that gays and lesbians continue to be among the most frequent victims of all reported hate crimes.”
The brief points out that many private companies and individuals discriminate against LGBT people, in part because they model their policy’s after the government’s, which also doesn’t protect gays and lesbians. Hate crimes based on the victim’s sexual orientation constituted one-sixth of all reported hate crimes, according to 2007 FBI statistics.
5. “Sexual orientation, the Ninth Circuit explained, is ‘fundamental to one’s identity,’ and gay and lesbian individuals ‘should not be required to abandon’ it to gain access to fundamental rights guaranteed to all people. … There is also a consensus among the established medical community that efforts to change an individual’s sexual orientation are generally futile and potentially dangers to an individual’s well-being.”
For perhaps the first time, the federal government is fully affirming the psychological realities of gay, lesbian, and bisexual identities. Sexual orientation is innate, biological, immutable and cannot and should not be changed.
6. “The strong backlash in the 1970s, 1980s, and 1990s to these civil rights ordinances has been followed in the 2000s with similar political backlashes against same-sex marriage. In 1996, at the time DOMA was enacted, only three states had statutes restricting marriage to opposite-sex couples. Today, thirty-seven states have such statutes, and thirty states have constitutional amendments explicitly restricting marriage to opposite-sex couples.”
Opponents of equality often claim that they are the victims because the LGBT movement is powerful — even “bullies.” Many forget that most of the anti-gay laws in place are quite recent. Despite advances toward equality, the LGBT movement has almost always been primarily concerned with defending against discrimination. The brief points to California’s Proposition 8 and last year’s ousting of three Iowa supreme court justices as the most recent examples of political powerlessness and backlash.
7. “Whether premised on pernicious stereotypes or simple moral disapproval, laws classifying on the basis of sexual orientation rest on a ‘factor [that] generally provides no sensible ground for differential treatment,’ and thus such laws merit heightened scrutiny.”
Though many may object to homosexuality on religious or moral grounds, those objections do not constitute “a legitimate policy objective.” In other words, discriminatory laws like DOMA do not do anything to further government interests.
8. “Thus, one 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.”
The DOJ is responding directly to the House Report’s claim that DOMA would “promote heterosexuality” and discourage homosexuality, referring to it as “the kind of animus and stereotype-based thinking that the Equal Protection Clause is designed to guard against.”
9. “In addition to expressing bare hostility to gay and lesbian people and their relationships, in enacting Section 3, the House Report articulated an interest in ‘defending an nurturing the institution of traditional, heterosexual marriage.’ … As an initial matter, reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles.”
Whatever “traditional marriage” might be, DOMA does nothing to protect it, as opposite-sex couples are unaffected by the marriages of same-sex couples.
10. “First, there 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. … Second, there is no evidence in the legislative record that denying federal benefits to same-sex couples legally married under state law operates in any way to encourage responsible child-rearing, whether by opposite-sex or same-sex couples, and it is hard to imagine what such evidence would look like.”
The brief concludes by debunking the House Report’s argument that DOMA advances “responsible procreation.” Whether same-sex couples can marry or not has no impact on whether opposite-sex couples will have children and DOMA likewise ignores the fact that many same-sex couples have children themselves.
By challenging the constitutionality of DOMA, the Department of Justice took a bold step toward affirming LGBT equality. Having now openly acknowledged the government’s historic role in maintaining discrimination, this brief is a clear sign that the Obama administration is committed to reversing that role.