by Mike Andrew -
SGN Staff Writer
In the first comprehensive defense of LGBT civil rights ever put forward by the U.S. government, the Department of Justice filed an amicus brief in Windsor v. USA, the DOMA case now before the Supreme Court, on February 25.
In the 67-page document, which cites 60 judicial precedents and 30 additional professional references, DOJ - which is technically representing the defendant in the case, the U.S. government - explained why the plaintiff, Edie Windsor, should win.
Windsor, an 83-year-old widow, says the IRS unconstitutionally charged her $363,053 in inheritance taxes solely because she was married to another woman, rather than to a man.
ANTI-LGBT BIAS 'PERVASIVE'
In its brief, DOJ agreed with Windsor that DOMA is unconstitutional, but it went far beyond the facts of the Windsor case to argue that LGBT people are targets of pervasive discrimination, affecting every area of their lives, and that laws limiting LGBT rights deserve the same level of judicial scrutiny as those affecting race or religion.
All levels of government and private entities have a history of discrimination against LGBT people, the DOJ said, and not just in marriage rights. LGBT people in the U.S. suffer discrimination in employment, immigration, hate crimes, child custody, law enforcement, and voter referenda.
The DOJ also acknowledged that the vast majority of LGBT-related state voter initiatives either repealed anti-discrimination laws or added laws denying the right to marry.
'[G]iven its breadth and depth, the undisputed 20th-century discrimination has lasted long enough,' DOJ concluded.
The LGBT community in the U.S. also shares a characteristic of relative political powerlessness with communities of color, the DOJ brief concluded. In 1996, only three states restricted marriage to opposite-sex couples, yet today, 39 states have such restrictions. Most states have no law protecting LGBT people from employment discrimination, DOJ pointed out, and Congress has never passed an equivalent federal law.
DOJ: IT'S NOT A CHOICE
The Justice Department also affirmed that sexual orientation is a fundamental part of human identity, and being at liberty to express it is an integral part of human freedom.
Sexual orientation is also an immutable characteristic, like race or gender, DOJ said, and should be protected by legal provisions similar to those that prohibit racial or sex discrimination. The brief cites the scientific consensus that for most people, sexual orientation is not a matter of choice, and that forcing people to change their orientation is futile at best and potentially harmful at worst.
In this context, DOJ pointed out, the Supreme Court has already rejected false distinctions between 'status' and 'conduct.' A tax on wearing yarmulkes, for example, would ultimately be an unconstitutionally discriminatory tax on observant Jews, regardless of the claims of the legislators who passed it. Similarly, laws that discourage people from consummating same-sex attractions are, in reality, laws against LGBT people.
Having laid this groundwork, the Justice Department then goes on to address the central question: 'Do laws that seem to discriminate against LGBT people serve a compelling government interest?' And they answer unequivocally, 'No, they do not.'
'Like gender, race, or religion, sexual orientation bears no inherent relation to a person's ability to participate in or contribute to society,' the Justice Department says.
DOMA SERVES NO PURPOSE
The DOJ brief then goes on to say that not only does the federal government have no compelling interest in defending heterosexuality, traditional morality, or traditional opposite-sex marriage but that even if it did, DOMA does not serve any of those purposes.
The government does have an interest in promoting 'procreation and child-rearing,' DOJ concedes, but DOMA does nothing to promote procreation and has no relationship whatsoever to potential offspring.
The DOJ brief then cites the consensus of experts that 'children raised by Gay and Lesbian parents are as likely to be as well-adjusted as children raised by heterosexual parents.'
The brief also asserts that while there is no valid government interest in promoting mixed-gender parenting over same-gender parenting, DOMA does not promote responsible mixed-gender parenting, nor does it prevent irresponsible same-gender parenting. In fact, DOJ concludes, DOMA actually undermines same-gender parenting, thus hindering instead of advancing child welfare.
Consequently, the DOJ brief says, no state or federal agency can lawfully refuse to recognize a lawful state marriage - same-sex or opposite-sex - because that would violate the Fifth Amendment principle of equal protection.
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