Filed under: Windsor
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
By Scottie Thomaston
In 1996, when then-President Bill Clinton signed the Defense of Marriage Act, he issued a statement that the law “has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws” and that “the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation.” His administration called the law “gay baiting,” but he nonetheless signed DOMA into law.
Yesterday, Clinton wrote an opinion piece in the Washington Post calling on the Supreme Court to strike down Section 3 of DOMA when it decides United States v. Windsor this year.
The piece says:
In 1996, I signed the Defense of Marriage Act. Although that was only 17 years ago, it was a very different time. In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its passage “would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.” It was under these circumstances that DOMA came to my desk, opposed by only 81 of the 535 members of Congress.
Of the statement his administration issued after signing DOMA, he now says:
Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned.
And this country is changing rapidly, moving swiftly toward equality for gays and lesbians:
We are still a young country, and many of our landmark civil rights decisions are fresh enough that the voices of their champions still echo, even as the world that preceded them becomes less and less familiar. We have yet to celebrate the centennial of the 19th Amendment, but a society that denied women the vote would seem to us now not unusual or old-fashioned but alien. I believe that in 2013 DOMA and opposition to marriage equality are vestiges of just such an unfamiliar society.
Former President Clinton joins the Obama administration, hundreds of companies, hundreds of Congresspeople (including 21 Senators who voted for the law but eventually opposed it), government watchdog groups, former FEC officials, former Solicitors General from Republican and Democratic administrations, and others who oppose DOMA and bans on same-sex marriage.
Richard Socarides, former White House Special Assistant and Senior Advisor under Clinton writes in the New Yorker about former President Clinton’s change of heart:
The essay, a Clinton associate told me, was Clinton’s own idea; he wrote it out himself in longhand on a legal pad. As his former White House adviser on gay-rights, I was not surprised by the message. But Clinton’s willingness, just twenty days before two gay-rights cases go to the Supreme Court, to publicly call DOMA discriminatory is a big step, even if his comments stopped short of the full apology some have asked for.
But the op-ed leaves a political mystery intact. Clinton, though clearly unhappy with the law today, does not really explain why he signed it, other than to say “it was a very different time.” Perhaps that is explanation enough. Still, how was it that Bill Clinton, the first President to champion gay rights, put his name on one of the most discriminatory anti-gay statutes in American history?
What are the lessons of the Defense of Marriage Act? Perhaps the clearest one is that if you compromise on principle, on the assumption that the world will never catch up with your ideals, you will likely come to regret it. Marriage equality was not some completely far-off vision; it was something that could be achieved. Clinton never believed that the federal government had the right to discriminate. The harder question is this: When is winning the most important thing? Would a veto, in retrospect, have been worth the risk?
The Supreme Court takes up the issue of same-sex marriage on March 26-27, the first time in history the Court will hear arguments on the questions of state and federal laws restricting the definition of marriage to opposite-sex couples. A ruling is expected in both cases in late June.
Equality news round-up: A list of some of the amicus briefs filed in Supreme Court challenges to Prop 8 and DOMA
By Scottie Thomaston
EqualityOnTrial has been reading the briefs in the Prop 8 and DOMA cases, and covering many of them. Since there are well over 100, I thought a round-up of some of the briefs we haven’t covered would be useful.
- Joe My God highlights the brief filed by 212 Congresspeople, and quotes from a press release:
The amicus brief filed today makes clear that BLAG does not speak for Congress, and that many members believe that Section 3 should be struck down because there simply is no legitimate federal interest in denying married same-sex couples the legal security, rights and responsibilities that federal law provides to all other married couples. As the brief explains: “DOMA imposes a sweeping and unjustifiable federal disability on married same-sex couples.”
- A brief from former FEC commissioners argues Section 3 of DOMA affects free speech:
The brief says that DOMA, when imposed over campaign finance laws, prevents married gay individuals from using the personal funds of a spouse for campaigns and from attending certain political meetings and contributing to political action committees for unions and corporations that employ their spouse. The former commissioners argue that the burdens DOMA creates for gay candidates and donors should lead the Supreme Court to uphold the appeals court decision finding DOMA to be unconstitutional.
“Sexual orientation should never affect any American’s First Amendment right to free speech and association,” former FEC chairman and Caplin Drysdale lawyer Trevor Potter said in a statement. “Because of DOMA, though, discrimination is embedded in the very rules that shape political involvement. The Brief informs the Court of this fact to aid its deliberations on the constitutionality of DOMA.”
Potter was joined in the brief by a bipartisan collection of former FEC commissioners including Arent Fox lawyer Craig Engle, Skadden, Arps lawyer Kenneth Gross, Covington & Burling’s Robert Lenhard, Americans for Campaign Finance Reform president Lawrence Noble and Dickstein Shapiro’s Scott Thomas.
- Almost 300 businesses filed a brief which the Boston Globe highlights:
A who’s who of corporate America signed on to a friend-of-the-court brief filed Wednesday. The group of 278 businesses includes the Bay State’s EMC Corp., State Street Corp., Akamai Technologies Inc., and a number of law firms and health insurers.
“The federal law forces an employer to put its employees in two different castes,” said Sabin Willett, a partner with the Boston law firm Bingham McCutchen, which wrote the brief. “DOMA is bad for business.”
- Several briefs were filed from people and organizations who had previously filed briefs in Lawrence v. Texas and were cited in the Court’s majority opinion in the case: the Cato Institute (in Windsor and in Perry, as well as a brief from William Eskridge, whose writings were cited by the Court. h/t Kathleen for these links
- The Southern Poverty Law Center filed a brief which says:
The brief cites the anti-gay advertising employed during the Prop 8 campaign as ample evidence of animus against LGBT people. Among the citations are claims that pedophiles would be able to marry children and that humans would be able to marry horses.
- NFL players Chris Kluwe and Brendon Ayanbadejo filed a brief opposing Prop 8.
- California’s Assembly Speaker filed a brief opposing Prop 8.
- Massachusetts and several other states filed a brief opposing Prop 8. They argue that:
Proposition 8’s exclusion of same-sex couples from marriage is unconstitutional. Denying gays and lesbians the opportunity to wed the partner of theirchoosing does not advance any legitimate governmental interest.