For the first time ever, the U.S. government is appearing at the Supreme Court to:
(1) defend lesbian, gay, bisexual, and transgendered citizens in general
(2) defend same-gender couples in particular
(3) argue for their right to marry; and
(4) argue that laws about LGBT people must be judged the same way as laws about race and sex.
No matter the outcome, two facts alone make this case historical: never before has the Supreme Court heard such comprehensive, sweeping advocacy in favor of LGBT people, and never before has the federal government been the advocate.
On February 22, the Department of Justice filed a 67-page brief with the Supreme Court, which cited 60 other court cases, and mentioned 30 professional references. In this brief, the defendant in the case, the U.S. government, explains why it agrees with the plaintiff, Edith Windsor, that the federal Defense of Marriage Act (DOMA) is unconstitutional, and the government explains why it is wrong for the Internal Revenue Service to charge her $363,053 just because her legal marriage was to a female. The government also explains why laws that classify LGBT people as a group must be examined the same way as laws that classify people based on race or sex.
Today, a small number of politicians, lobbyists, and lawyers still argue that society should discriminate against LGBT people via laws like DOMA. Their arguments are nicely itemized in another brief filed in this same case.
But one may well ask: Since the plaintiff and the defendant both agree that the law is unconstitutional, then what’s left to dispute? And who else is filing briefs in this case? That’s an excellent question, and it has a startling answer.
Republican officials inserted themselves as a third party in this case, and are arguing that same-gender couples should have to pay huge, extra taxes to the government, that they should be denied access to federal programs for couples, and that penalizing same-gender widows, widowers, couples, and families is good for society. Speaker of the House John Boehner (R-Ohio), Majority Leader Eric Cantor (R-Va.), and Majority Whip Kevin McCarthy (R-Calif.) secretly decided to spend $3 million in taxpayer money to pay outside lawyers to show up in 14 courtrooms around the country and defend the DOMA. They are losing every round at every level, and now two of their 14 cases have reached the highest court in the land.
So this now is the line-up before the Supreme Court: the plaintiff and the defendant — who are in total agreement — are both arguing to halt penalties against same-gender couples and families, and three Republican party leaders are arguing to continue them.
In the process of making its own case, the federal government had to defeat the Republicans’ arguments. That put the government in the position — for the first time ever — of also refuting the oft echoed false accusations made about LGBT people, couples, and families by arch-conservatives, evangelical Protestant dominionists, Mormon leaders, and Roman Catholic clergy.
Here are some of these amazing, history-making refutations.
History of Discrimination
Republicans claim that discrimination against LGBT people is negligible, is shrinking, and thus is insignificant. But the federal government refutes that, showing that all levels of government and private entities have a regrettable history of discrimination against gay and lesbian people in: employment, immigration, hate crimes, child custody, police enforcement, and voter referenda. The government also notes that the vast majority of LGBT-related state voter initiatives either repealed anti-discrimination laws, or else added laws denying the right to marry. The government concludes by saying, “given its breadth and depth, the undisputed twentieth-century discrimination has lasted long enough.”
The Republicans claim that LGBT people have all the political power that they need to be able to protect themselves. But the federal government proves otherwise. In 1996, only three states restricted marriage to mixed-gender couples, yet today, 39 states have such restrictions. Most states have no law protecting LGBT people from employment discrimination, and Congress has never passed an equivalent federal law.
The Republicans call sexual orientation “a propensity to engage in a certain kind of conduct” — in other words, “we’re not oppressing people, just restricting their behavior.” But the federal government notes that the Supreme Court has rejected such artificial distinctions between “status” and “conduct” — in other words, a tax on wearing yarmulkes is, ultimately, a tax on Jews. The government confirms that sexual orientation is a fundamental aspect of human identity, and its expression is an integral part of human freedom.
The Republicans and their allies argue that sexual orientation is not necessarily fixed, that it may change over time, that it varies along a spectrum, that being LGBT is a curable illness, and that everyone can simply “choose” heterosexuality. But the federal government proves that the scientific consensus says that for the vast majority of people, sexual orientation is not a voluntary choice, and that efforts to change anyone’s sexual orientation are usually futile and potentially dangerous.
Value to Society
The Republicans and their allies claim that LGBT people don’t contribute to society, they cause its disintegration, and they threaten the survival of the human race. But the federal government proves that “Like gender, race, or religion, sexual orientation bears no inherent relation to a person’s ability to participate in or contribute to society.”
The Republicans claim that the DOMA promotes heterosexuality. But the federal government proves otherwise, and notes that just as oppressing people who are lesbian, homosexual, bisexual, or asexual does nothing to promote heterosexuality, so too, the DOMA itself does nothing to promote heterosexuality.
Protecting Heterosexual Marriage
The Republicans claim that the DOMA promotes and protects heterosexual marriage. But the federal government proves that denying federal benefits to legally married same-gender couples provides no incentive for mixed-gender couples to marry, procreate, or raise children. The government also notes that the DOMA does nothing to protect marriage.
The Republicans claim that the DOMA defends morality. The government disagrees, and explains that just because a majority of voters view something as immoral is no reason to outlaw it, especially for personal or religious objections, and that prejudice can be caused by hostility, ignorance, fear, tradition, or belief, but none of those causes justifies writing discrimination into civil law.
The Republicans claim that the DOMA protects states’ “sovereignty” and “self-governance” — in other words, it ensures that states can independently decide to continue to discriminate against same-gender couples and their families within a state, and from other states. But the federal government proves that no state or federal agency can refuse to recognize a lawful state marriage — same-gender or mixed-gender — because that would violate the constitutional principle of equal protection.
The Republicans claim that the DOMA saves taxpayer dollars. But the federal government proves that the DOMA does not save money, and even if it did, that saving money is never a justification for excluding one group of people from taxpayer-funded benefits programs.
Procreation & Child-Rearing
The Republicans argue that heterosexual marriage must be promoted in order to achieve “responsible procreation and child-rearing,” and that society’s only interest in marriage is for procreation, and that heterosexual marriage creates a government interest in “unplanned and unintended offspring.” They offer no evidence for any of this except what they call “common sense.” But the federal government notes that the DOMA does nothing for heterosexuality, procreation, or child-rearing, and has no relationship to offspring at all. The government then proves that legally married same-gender couples are fully capable of responsible parenting, because the consensus of experts is that “children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents.” The government also proves that there is no valid government interest in promoting mixed-gender parenting over same-gender parenting, and that the DOMA neither promotes responsible mixed-gender parenting, nor prevents irresponsible same-gender parenting, and actually undermines same-gender parenting, and thus hinders — instead of advances — child welfare.
Caution When Experimenting
The Republicans argue that Congress might have wanted to “proceed with caution” in “experimenting” with marriage. But the federal government notes that no law allows slow deliberation as an excuse for denying benefits to an entire class of people.
The Republicans argue that treating people unequally is allowable while the democratic process runs its course — in other words, discrimination is just fine in whatever states decide to allow it. But the federal government notes that raw democracy is never an excuse for violating the Fifth Amendment’s guarantee of equal protection.
There’s much more to the case regarding why the DOMA is unconstitutional, and why anti-LGBT laws should get close scrutiny in the courts. But it is the federal government’s arguments favoring LGBT people themselves which, regardless of the outcome, stand out as unexpected, unprecedented, and wholly historic.
Ned Flaherty is a Projects Manager at Marriage Equality USA, an organization which has worked with Log Cabin Republicans on marriage equality campaigns. In this article he represents himself, not either organization. He writes from Boston, Massachusetts.