WASHINGTON — Edith Windsor made her case to the Supreme Court in a filing Tuesday, telling the justices that the Defense of Marriage Act’s dictate that the federal government cannot recognize her marriage to a woman is unconstitutional and should be struck down.
“As this court has already recognized, laws burdening lesbians and gay men that were ‘once thought necessary and proper’ may in fact ‘serve only to oppress,’” lawyers for Windsor wrote, quoting from two earlier opinions supporting equal rights for gays and lesbians that were written by Justice Anthony Kennedy — likely a key vote in Windsor’s case.
“[G]ay couples like Ms. Windsor and Dr. [Thea] Spyer marry for the same reasons straight couples do — to express their love and commitment to each other,” Windsor’s legal team, led by Roberta Kaplan of Paul Weiss, argue.
Attacking arguments made by the House Republican leaders in defense of the law, the lawyers continue, “To suggest otherwise, without a shred of empirical support, insults gay people and rests on impermissible stereotypes that render [DOMA] unconstitutional.”
Specifically, Windsor argues laws like DOMA that classify people based on their sexual orientation should be subjected to “heightened scrutiny” by courts, which demands the government to provide an “important” reason for the law in question. A similar argument was made by the Obama administration in a filing last Friday.
In discussing the standards that courts use when determining whether heightened scrutiny should apply, Windsor argues that gays and lesbians have faced a history of discrimination, and that their being gay does not affect their ability to contribute to society. Additionally, she argues that sexual orientation is not, generally speaking, fluid, and that the group “lacks political power” because of prejudice.
House Republican leaders, who make up a majority of the House’s Bipartisan Legal Advisory Group (BLAG), have defended DOMA by arguing that “homosexuals as a class have never been politically disenfranchised.” Windsor’s lawyers respond in their filing, “True enough, but irrelevant. Formal disenfranchisement has never been used as a litmus test for applying heightened scrutiny.”
Regarding the political power of gay people, which BLAG argues has expanded greatly, Windsor’s legal team, which includes the American Civil Liberties Union and Stanford Law School professor Pamela Karlan, responds:
The fact that gay couples are the only legally married couples in the entire nation who cannot benefit from the wide range of federal benefits provided to all other legally married couples is itself powerful evidence of gay people’s ongoing political vulnerability.
Quoting from the Obama administration’s Friday filing, Windsor then notes, “At oral argument before the court of appeals, ‘BLAG’s counsel all but conceded,’ that its [given] justifications for DOMA could ‘not withstand intermediate scrutiny.’”
Even if the court does not choose to apply such heightened scrutiny to DOMA, Windsor maintains the law still should be struck down as unconstitutional. The lawyers put forward three areas where the Supreme Court has struck down laws under the lowest form of scrutiny, called rational basis review: when the purpose of the law is to harm a targeted group; when a law subjects such a group to broad disadvantages for no legitimate reason; and when laws are not the type of laws the federal government generally passes.
Windsor then stated that “DOMA raises all three of these red flags” — noting the “language of panic and fear” in the legislative debate over DOMA, DOMA’s “uniquely broad scope,” and DOMA’s “unprecedented intrusion into an area of traditional state regulation.”
Windsor argues that BLAG’s given reasons to justify passage of DOMA “fall into three general categories: (1) procreation-related interests, (2) uniformity/conservation of resources interests, and (3) interests in dual sovereignty, tradition and caution. None provides a rational basis for DOMA.”
Regarding the changed environment for same-sex couples since DOMA was passed and signed into law in 1996, Windsor notes:
DOMA today operates not to defend marriage for straight people, but only to undermine the institution of marriage as it now exists where gay couples are allowed to marry: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and the District of Columbia.
The House Republicans can now file a brief reply to Windsor’s arguments, and the oral arguments in the case are scheduled for March 27 — the day after the Supreme Court is scheduled to hear arguments in the case over California’s Proposition 8.
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