Recently, the Obama Administration filed a brief urging the U.S. Supreme Court to find the Defense of Marriage Act (“DOMA”) unconstitutional because it violates the Fifth Amendment’s guarantee of equal protection under the law. On the other side of the case are the House Republicans who, through the Bipartisan Legal Advisory Group or “BLAG” (on which the GOP has a 3-2 majority), are arguing that the discriminatory DOMA should be maintained. Reading the briefs of the Obama Administration and BLAG side-by-side provides a telling case study of just how differently progressives and conservatives view the U.S. Constitution and its role in protecting equality for all Americans.
The case at hand is United States v. Windsor (Case No. 12-307), in which Edith Windsor is challenging the fact that she had to pay $363,053 in estate tax when her spouse, Thea Spyer, passed away. Ms. Windson had married Ms. Spyer in Canada in 2007 and her marriage is recognized as valid under the laws of the State of New York, where the couple lived. Section 3 of DOMA, however, forbids the federal government from recognizing the legal validity of a same-sex marriage even if that marriage is valid in the state where the couple lives. As a result, same-sex couples are discriminated against in the administration of 1,138 federal laws and programs that turn at least in part on marital status. One such law is the provision of the tax code that allows a person to inherit money from their spouse without being subject to the estate tax. When Ms. Windsor was required to pay estate tax after her spouse died, she filed a refund claim with the IRS that has now made its way up to the Supreme Court.
With this high-profile issue reaching the Supreme Court, a plethora of organizations and individuals have weighed in by filing briefs on the issue, including a group of ten Republican Senators and a group of seventeen Republican state Attorneys General each urging the Court to uphold DOMA. But the real battle here is between the Obama Administration, that has stepped up to urge the reversal of DOMA, and BLAG, which has spent at least $1.4 million of taxpayer money attempting to defend the indefensible DOMA.
The Constitutional analysis of an equal protection claim turns on two primary questions. First, what level of scrutiny should the Court apply in reviewing the Constitutionality of the law at issue? Most laws are subject to rational basis review, which means that the government must simply identify some rational basis for the law in order for it to be upheld. If the law, however, discriminates on the basis of a suspect or quasi-suspect classification, it is subjected to strict or heightened scrutiny under which the law can be upheld only if it substantially furthers an important government interest. A law being challenged involves a suspect of quasi-suspect classification if it discriminates against an identifiable group that has historically been discriminated against and lacks political power, and for whom the basis for the classification bears no relationship to the ability of the people being classified to contribute to or participate in society. Second, once the level of scrutiny is determined, the Court must evaluate whether the law being challenged survives the applicable level of scrutiny. Because laws almost always survive rational basis review, and almost never survive strict or heightened scrutiny, the decision of what standard to apply is key to determining the outcome.
Today’s post will deal with the competing arguments made by the Obama Administrati0n and BLAG regarding whether strict scrutiny should apply in reviewing the constitutionality of DOMA. Tomorrow’s post will assess the arguments regarding whether DOMA survives the level of scrutiny that applies.
The Obama Administration and BLAG briefs differ fundamentally on the level of review that should be applied to laws that discriminate against LGBT Americans. The Obama Administration brief provides a compelling argument in favor of providing the full strength of the Constitution’s equal protection provisions to LGBT people because, as the Administration explained:
Gay and lesbian people have suffered a significant history of discrimination in this country. No court to consider the question has concluded otherwise, and any other conclusion would be insupportable.
The Administration brief then proceeds to recount the nation’s “regrettable history of discrimination against gay and lesbian people” in the areas of employment, immigration, hate crimes, child custody, police enforcement, and voter backlash, which plainly demonstrate why heightened scrutiny should apply to laws that continue to discriminate based on sexual orientation.
By contrast, BLAG largely tries to dodge the question of whether LGBT people have historically been discriminated against and, instead, points to past Court decisions to claim that LGBT people should receive only the minimal protections of rational basis review. But BLAG also attempts to rebut the history of discrimination claim by asserting that LGBT people have not “suffered discrimination for longer than history has been recorded . . . . [as[ there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.” Instead, BLAG claims that discrimination against LGBT people did not begin until the 1920s. Such claim is simply false, and also ignores the fact that being gay or lesbian was not a widely acknowledged issue in earlier history largely because the topic was so taboo no one dared speak of it, much less publicly identify as being gay or lesbian. The fact that gays and lesbians felt compelled to hide their sexual identities is evidence of discrimination, not of the lack thereof.
The Administration and BLAG briefs also contrast greatly on the question of whether LGBT Americans have limited political power. While the Administration acknowledged that gay equality advocates recently won their first statewide voter referendums on marriage equality in Washington state, Maryland, and Maine, since 1996 the country has gone from three states officially outlawing marriage equality to thirty-nine states doing so. And thirty of those states that bar marriage equality did so through voter-approved state constitutional amendments.
By contrast, BLAG points to growing public support for marriage equality, the ending of Don’t Ask, Don’t Tell, President Obama’s support for marriage equality, and other advances for the cause of equality as demonstrating that LGBT people now have sufficient political power that they do not need heightened protection under the Constitution. Such argument, of course, is pretty brazen coming from a political party that has opposed LGBT equality every step of the way. And it is also misguided, as there can be no serious dispute that LGBT equality is a politically impossibility in vast swaths of the country, as evidenced by 39 states banning marriage equality, the inability to get the Employment Non-Discrimination Act passed through Congress, etc.
A final major disagreement between the Obama Administration and BLAG is regarding whether sexual orientation is immutable. Relying on outdated and dis-proven perceptions of gays and lesbians, the BLAG brief contends that heightened scrutiny should not apply to laws discrimination against LGBT people because gays and lesbians are “defined by a propensity to engage in a certain kind of conduct . . . sexual orientation is a fluid characteristic capable of changing over a person’s lifetime.” The Obama Administration’s brief rightly slaps this argument down, noting that the Supreme Court has already rejected the idea that LGBT people are somehow defined by their conduct, and explaining that BLAG’s implication that sexual orientation is a choice has been resoundingly rejected by the scientific and medical communities:
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. There is likewise a medical consensus that efforts to change an individual’s sexual orientation are generally futile and potentially dangerous to an individual’s well-being.
It is disturbing, to say the least, that the leadership of the US House would continue to repeat such outdated claims to the contrary.
The competing briefs of the Obama Administration and the House Republicans present significantly different visions of how our nation has and continues to treat LGBT Americans, and to what extent the Constitution should work to ensure that gays and lesbians receive the same rights and equality as all Americans are entitled to. In our next post, we will evaluate how the two parties would apply those Constitutional principles to the question facing the Court of whether the federal government should be able to define marriage, and the multitude of attendant benefits under federal law, in a way that excludes same-sex couples.