August 2, 2013
A broad argument in favor of marriage equality is being presented to a district court in Oklahoma. In Bishop v. United States, plaintiffs are challenging Sections 2 and 3 of the federal Defense of Marriage Act (DOMA) and Oklahoma’s ban on marriage equality and its refusal to recognize married same-sex couples. After the Supreme Court issued its decision striking down Section 3 of DOMA in United States v. Windsor, the plaintiffs asked the district court to rule in their favor on the Section 3 claims, since the statute is no longer valid.
In a new filing, the plaintiffs suggest that Windsor‘s reasoning applies to their other claims as well.
The brief points out that the Court in Windsor struck down Section 3 of DOMA on due process and equal protection grounds, while at the same time strongly suggesting that the opposite-sex definition at issue in Windsor affected the equal dignity and equal treatment that same-sex couples are entitled to. Windsor, they write, recognized the dignity in all marriages, not only those where spouses are of the opposite-sex.
The plaintiffs write that the same rationalizations the Supreme Court disavowed in Windsor are used to defend Oklahoma’s ban on same-sex marriage: defending traditional marriage, preventing the redefinition of marriage, expressing moral disapproval of homosexuality, and other rationales similar to the ones at issue in the challenge to the federal definition of marriage. And they write that since Windsor held that discrimination that’s especially unusual and seems to be based on a bare desire to harm a politically unpopular group (quoting prior precedent using the most lenient rational basis test to strike down a federal law) this necessarily means that the reasons given to defend Oklahoma’s marriage ban should be viewed as more suspect.
Also, along with the more animus-based rationales, the plaintiffs here point to the Windsor Court’s rejection of even the benign rationalizations offered in defense of Section 3 of DOMA. The Supreme Court rejected child-rearing, uniformity, and other rationales as a defense of the statute, holding instead that because Section 3 of DOMA is so unusual, it could only have been enacted to harm an unpopular group. And this is so even under rational basis review: the Supreme Court in Windsor only addressed heightened scrutiny in one sentence, suggesting that the debate on the level of scrutiny for classifications based on sexual orientation is still ongoing in the appeals courts; since the Court didn’t apply a higher level of scrutiny, it’s assumed that these laws wouldn’t withstand even rational basis review without a legitimate, non-animus-based purpose.
As other courts are beginning to note, DOMA Section 3′s demise means that same-sex married couples are now entitled to at least 1,138 federal rights that were blocked before the Supreme Court rendered its decision. Because of Windsor, same-sex couples living in states where same-sex marriage is banned remain excluded from receiving any of these rights, benefits, and responsibilities. The plaintiffs write that only striking down Oklahoma’s ban will remedy the violation of equal protection and allow same-sex couples the right to marry and receive these benefits just as opposite-sex couples can.
Last, the plaintiffs write that it “defies legal logic” to assume that Windsor‘s holdings can’t be applied to Section 2 of DOMA – the section that allows states to refuse to recognize same-sex marriages performed in states where it is legal. Oklahoma’s non-recognition of same-sex marriages performed elsewhere, they suggest, is a “double standard” that implicates equal protection questions just as Section 3′s discriminatory and animus-based treatment did. The two sections of DOMA work together as a legislative scheme to deny equal protection to same-sex married couples, and thus should both be invalidated.
The remaining filings in this case are due the last two weeks of August.
h/t Kathleen Perrin for this filing