Filed under: Windsor
By Scottie Thomaston
- David Boies, Edie Windsor were honored at the NYU 2013 commencement.
- The Boy Scouts of America ended the ban on gay scouts yesterday; they didn’t end the ban on adult Scout leaders, and their statement notes that the policy on adult leaders wasn’t under consideration.
- Huffington Post‘s Lila Shapiro has a report on the discrimination complaint against Exxon Mobil that EqualityOnTrial has discussed.
- Nothing will be done on ENDA until July.
By Scottie Thomaston
The Senate Judiciary Committee on Tuesday rejected pro-LGBT amendments to the “comprehensive” immigration reform bill, and as EqualityOnTrial noted yesterday, four Democrats also opposed inclusion of the amendments. Activists reacted with anger to the exclusion, with some suggesting they were shocked. The amendments were an attempt to protect members of binational same-sex couples from facing deportation, because the federal Defense of Marriage Act bars recognition of legal same-sex marriages and sponsorship of spouses relies on the definition imposed by DOMA.
The chairman of that committee, Senator Leahy (D-VT) had introduced two pro-LGBT amendments: one is the Uniting American Families Act (UAFA), which would create the category of “permanent partner” in immigration laws as a way to reduce some of the effects of DOMA. The classification of permanent partner would have imposed most of the same requirements as marriages: the couple would have to be in a committed relationship, couldn’t be underage or blood relatives, and couldn’t be married or in a permanent partnership with anyone else. UAFA carves out an exception to DOMA: DOMA would remain the law until repealed or struck down by the Supreme Court, but same-sex binational couples could escape deportation.
The other amendment is a different type of workaround. It would add a section to the Immigration and Nationality Act providing that a marriage will be recognized as legal if it is legal where it was performed. This wouldn’t create any new categories, it would just ensure that the federal government relies on state law definitions for immigration purposes.
Neither amendment was included in the bill by the committee, but yesterday Greg Sargent reported in the Washington Post that Democratic aides are saying that the amendments may be reintroduced after the immigration bill reaches the floor of the Senate. The report suggests that the amendments may reappear in time to coincide with the Supreme Court’s eventual ruling in United States v. Windsor, Edith Windsor’s constitutional challenge to Section 3 of DOMA. If the Court strikes down the law, it would make UAFA mostly inoperable. But this Court is unpredictable on social issues and any decision could hinge on Justice Anthony Kennedy’s vote. At oral argument he seemed most convinced that Section 3 of DOMA violates federalism principles, but most of the moderates seemed to find an equal protection holding more appealing while the conservatives disagreed with both. If the Court leaves DOMA intact, it’s hard to see how Congress would repeal it any time soon. The House is majority Republican and the Senate usually proceeds on the assumption that 60 votes will be required due to obstruction.
Introducing the amendments right before the Court’s ruling could change the conversations over LGBT inclusion: if Section 3 of DOMA is struck down, the amendments would be seen as largely unnecessary, but if it’s upheld and the amendments aren’t included in the bill, same-sex binational couples will not get any relief from this immigration reform package. Interestingly, Sargent’s piece suggests that Democrats actually want to force the issue:
And so, if Dems wait until the DOMA decision comes down, they could find themselves without any real need to push the LGBT issue in the immigration reform debate. At the same time, though, this is a fight Democrats — and the White House – want to have, for substantive and political reasons. So they may introduce the amendments before the DOMA decision comes down — forcing a public battle with the GOP over gay rights.
That would theoretically gin up the right wing base, forcing Republicans to rail against — and vote against — the simple act of extending a bill many of them support, i.e., immigration reform, to cover gay married couples, too. That would again reveal the GOP’s unwillingness to evolve on gay marriage along with the rest of the country, at a time when even some Republican officials and strategists are urging the party to develop a more tolerant and inclusive aura, something that is being made impossible by the refusal of most Republican voters to accept the inevitable.
It’s a bigger challenge to get the amendments in the bill on the floor, of course. It will take 60 votes for the Senate to include the amendments on the floor, whereas if the committee had included it, Republican opponents would have needed 60 votes to strip the amendments on the floor. If there’s a serious push, it may happen, but if it’s just to “forc[e] a public battle with the GOP over gay rights” then inclusion of the amendments would ultimately be more about discussing the issue of LGBT inclusion and less about doing the work to include LGBT people. The Court’s ruling, expected by late June, may be a critical factor in Congress’ decision.
By Scottie Thomaston
The final filing from House Republicans, via the Bipartisan Legal Advisory Group (BLAG), on the constitutionality of Section 3 of DOMA was filed this week. The brief is especially noteworthy because BLAG’s lawyers go to great lengths to urge the Supreme Court not to apply a heightened level of scrutiny, but to instead apply the most deferential form of rational basis review. This form of rational basis review, they write, has only led to the Court striking down one statute as unconstitutional. BLAG says that Windsor’s attorneys “distort” the way rational basis is actually applied, in order to make it appear less deferential to legislative prerogatives than it actually is.
They also attempt to dissuade the Court from considering that laws classifying people on the basis of sexual orientation are “suspect”:
Nor is there any basis for this Court to make sexual orientation the first new suspect class in forty years. Treating a group as a suspect class for equal protection purposes is, at bottom, a determination that by dint of a long history of official disenfranchisement or other obstacle, a group cannot protect its interests through the ordinary political processes. But gays and lesbians have made more progress through the ordinary political processes more quickly than any other group in recent memory, both on the issue of marriage and more generally. The impressive array of amici supporting affirmance provides powerful testimony to the political clout of a group that has been remarkably and increasingly successful in accomplishing its goals through the political process.
Along with noting the long list of amici, BLAG points to the recently-passed civil unions law in Colorado as a sign of progress. And as they did in their opening brief, they suggest again that the “political process” is really the best way to handle the issue of same-sex marriage:
This Court should decline the invitation to cut this vital debate short, uphold DOMA as constitutional, and permit the citizens of this country to continue participating in working through this important issue.
The brief does seem to make a few concessions; in a footnote, they concede that gay couples marry for the same reasons as straight couples (in defending their argument about marriage penalties making people less likely to marry.)
They again suggest that a child should be raised by his or her biological, opposite-sex parents:
DOMA’s opponents challenge as irrational the long-held cultural judgment that a child’s biological parents are, other things being equal, the child’s natural and most suitable guardians. Ms. Windsor even claims (at 45) that current law does not recognize this principle. That is mistaken: Every state recognizes that a child ordinarily should be raised by his or her biological mother and father, if they are able and willing.
The Court, they write, should only investigate the law for animus after they’ve exhausted all possible rational bases, instead of looking for animus separately:
Thus, while the Court has long recognized that discrimination purely for its own sake is not rational, under the established approach, constitutional review does not require a separate judicial inquiry into whether a law was motivated by “animus.” Instead, only
after the search for other rational bases for a law has been exhausted will the Court conclude that impermissible animus is the sole remaining explanation. Animus is thus a conclusion drawn from the unsuccessful search for rational bases, not a separate inquiry. Since the House has identified numerous rational bases for DOMA, the inquiry ends there.
Under this view, as long as BLAG can identify a rationality for DONA, the Court can’t decide whether or not DOMA was enacted simply out of animosity toward gays and lesbians.
Another concession BLAG makes is that the classification involved in the passage of DOMA is a classification based on sexual orientation. At certain points, they had previously seemed to be suggesting that it’s not orientation, but rather conduct that certain people wish to engage in. But they write here that:
All parties to this case agree that Section 3 should be analyzed as a sexual-orientation classification, and DOJ and Ms. Windsor argue thatsuch classifications should be subjected to heightened scrutiny.
They, of course, still suggest that the four qualifications typical for “suspect classes” don’t match sexual orientation, so they, again, urge the Court not to adopt a higher level of judicial scrutiny or consider sexual orientation a suspect classification.
They do, finally, suggest that Section 3 of DOMA would pass even a heightened level of judicial scrutiny, because of “dual sovereignty” considerations. In their opening brief, they had only dedicated a footnote to an argument that Section 3 of DOMA passes heightened scrutiny.
They close their brief with a plea to the Justices to allow the political process to work out any issues related to sexual orientation discrimination. They argue that debate is healthy and allows people to understand each other.
Next Wednesday, March 27, the Court hears arguments in the case, United States v. Windsor.
h/t Kathleen for this filing