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Queer Talk: Obama Administration Brief Urges Supreme Court to Strike Down DOMA

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LGBTs and allies have strongly urged President Obama to act, and on Friday, his administration did, urging the U.S. Supreme Court to strike down the Defense of Marriage Act, which was passed in 1996. At MetroWeekly, Justin Snow writes:

Arguing that Section 3 of DOMA, which forbids federal recognition of same-sex marriage, violates the Constitution, Solicitor General Donald Verrilli writes that DOMA also deserves heightened scrutiny because of the history of discrimination faced by gays and lesbians. …

The brief also takes issue with arguments advanced by the Republican-controlled House Bipartisan Legal Advisory Group (BLAG), which has been defending DOMA in federal court since the Obama administration stopped doing so in February 2011, including its argument that this is an issue that should not be decided by the courts.

‘BLAG makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law.

SCOTUS will hear arguments in the case of United States v. Windsor. Edith Windsor is challenging DOMA (beginning in 2010), following the death of her wife, Thea Spyer.

Windsor is suing to recoup about $363,000, the federal estate tax she was forced to pay on her ‘inheritance’ from Spyer. The federal government does not tax wealth that passes to a surviving heterosexual spouse.

MetroWeekly also reports that on Friday the DoJ filed a brief

… related to the administration’s right to pursue an appeal. BLAG also filed a brief challenging the government’s right to appeal and lawyers for Windsor filed a brief urging the Supreme Court to rule in the case. Oral arguments are scheduled to begin before the high court on March 27 with a ruling expected in June.

Read the full DOMA brief here.

At Think Progress, Igor Volsky focuses on (emphasis in original)

The 6 Best Arguments For Gay And Lesbian Equality In Obama’s DOMA Brief …

‘1. Section 3 ‘denies to legally married same-sex couples many substantial benefits afforded to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax, and other laws.’

2. Gay and lesbian people have been subject to a significant history of discrimination in this country. …

3. Sexual orientation is … a ‘distinguishing characteristic,’ and that is true even though so many gay and lesbian people have been forced for so long to hide their identities in order to avoid discrimination. …

4. The ‘broad consensus in the scientific community is that, for the vast majority of people (gay and straight alike), sexual orientation is not a voluntary choice.’

5. ‘No sound basis exists for concluding that same-sex couples who have committed to marriage are anything other than fully capable of responsible parenting and child-rearing.’ …

6. If anything, ‘the denial of federal benefits otherwise accorded to married individuals undermines the efforts of same-sex couples to raise their children, hindering rather than advancing any interest in promoting child welfare.’

Volsky writes that the DOMA brief cites California’s Prop 8,

as an example of the ongoing problem of bias against homosexuals. ‘Obama is reportedly considering asking the Court to overturn California’s ban against same-sex marriage before it hears oral arguments in that case on Tuesday, March 26. The Windsor case will be heard on Wednesday, March 27.

DOMA became law in 1996. In 2004, George W. Bush announced his support for a federal marriage amendment. Jim Burroway has a bit of history, at BoxTurtleBulletin:

With Massachusetts Supreme Judicial Court ruling that nothing short of marriage would provide full equality for same-sex couples as required in the state’s constitution … , and with San Francisco Mayor Gavin Newsom’s order that the county clerk begin issuing marriage licenses to gay couples …, pressure had been building on … Bush, then running for a second term as President, to do something! And so, in lockstep with his conservative Christian base – and in keeping with his campaign strategist Karl Rove’s encouraging several important states (including, critically, Ohio) to place marriage bans on their ballots as part of a get-out-the-vote effort – Bush declared his support for a the Federal Marriage Amendment, which, if enacted, would have permanently and nationally banished all same-sex marriages ‘or the legal incidents thereof.’

The day before the DoJ filed the DOMA brief, the American Foundation for Equal Rights filed briefs asking SCOUTS to overturn Proposition 8. Via Freedom to Marry:

… (T)he attorneys for … AFER … filed a brief in their Hollingsworth v. Perry case asking the United States Supreme Court to overturn Proposition 8 and restore the freedom to marry in California. …

The brief that AFER’s attorneys – Ted Olson and David Boies – … seeks to move marriage forward in California and nationwide. … Here’s a key excerpt:

‘The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships – their love – of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have … never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry.

A great deal has happened 1996, including a growing support from some on the Right, accompanied, of course, by the adamant voices of opponents of LGBT equality. One indication of both, from Joe My God:

Illinois GOP chairman Pat Brady may lose his job over his support of marriage equality.

Electeds who follow the leadership of LGBT activists and advocates at local, state and national levels, and those who don’t, are obvious.

(Loving Virginia SCOTUS via Occupy the Body Politic)

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2 Responses to Queer Talk: Obama Administration Brief Urges Supreme Court to Strike Down DOMA

  1. secularhumanizinevoluter February 26, 2013 at 5:41 am #

    “Proponents have … never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry.”

    That isn’t exactly correct….the harm will be to the stranglehold the UBERChristofascist/Superstition addled bigots have over their cult members as it becomes obvious the world doesn’t end like they babble in tongues about.

    • Joyce Arnold February 26, 2013 at 8:34 am #

      It’s a feared “harm” I’m sure is present, but not exactly the kind they could acknowledge in court :)

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