In a landmark legal brief that reads more like one from the ACLU or a gay legal group, the U.S. Justice Department argues that homosexuals exhibit immutable characteristics, have suffered a history of discrimination and that the federal government’s marriage law is driven by prejudice.
The legal brief — called a watershed moment by gay groups — seeks to have only part of the Defense of Marriage Act (DOMA) overturned, but its legal reasoning goes much further. The same legal arguments have been used in successful state court lawsuits to legalize gay “marriage.” If adopted by a federal court, the arguments eventually could be used in overturning not just all of DOMA but also the traditional marriage laws in the 44 states that do not recognize same-sex “marriage.”
“[G]ay and lesbian individuals have suffered a long and significant history of purposeful discrimination,” the department’s brief states, pointing to death penalty laws going back to Colonial times but also including current-day laws defining marriage in the traditional sense.
The Justice Department’s legal role is to defend the nation’s laws, but President Obama has ordered the department to stop defending the 15-year-old law in court. The House of Representatives has filled the void by hiring its own attorney.
The law, often called “DOMA,” has two primary functions: It 1) defines marriage for federal purposes as between a man and a woman and 2) gives states the option of not recognizing another state’s gay “marriages.” The Justice Department’s brief, filed July 1 in a district court within the Ninth Circuit, sides with a lesbian woman who filed suit to have the part of the law dealing with the federal definition of marriage overturned. She is a staff attorney within the Ninth Circuit who wants her partner to receive legal benefits. They received a marriage license in California before Proposition 8 passed.
But the Justice Department’s arguments, while only targeting one segment of DOMA that would not directly impact state laws, could be used later to target those laws.
“If a federal court finds these persuasive for purposes of interpreting a federal statute, then when it comes to interpreting a state constitutional amendment [defining marriage], they’ll have the exact same analysis,” Daniel Blomberg, an attorney with the Alliance Defense Fund — which supports the Defense of Marriage Act — told Baptist Press. “It will be identical. The government’s argument here could certainly be used to strike down not only all of DOMA but to force this definition on all of the states.”
Joe Solmonese, president of the Human Rights Campaign — the nation’s largest homosexual organization — called the brief a “watershed moment in the fight for LGBT equality.” Tara Borelli, an attorney with Lambda Legal, a gay group, called it an “historic shift with enormous significance.” Every presidential administration until the current one defended DOMA, and the Obama administration did so, tepidly, until this year.
The 24-page document broke new ground for the Justice Department by arguing that discrimination based on sexual orientation should be subject to what is called “heightened scrutiny” — a legal term that, if accepted by a federal court, would make it tougher to uphold the 1996 law. For heightened scrutiny to apply to gays, a four-part threshold would have to be met. It would have to be proven that homosexuals have suffered a history of discrimination, exhibit immutable characteristics, are a minority or politically powerless, and that the Defense of Marriage Act has no legitimate policy objective. The justice department contends that gays meet all four standards.
Blomberg called the argument “plainly inaccurate.”
“The Defense of Marriage Act was passed by 84 percent of Congress and signed by President Clinton,” Blomberg said, “and all it does is state what has been the definition of marriage for the entirety of human history, and particularly for American history. Are they prepared to argue that all those definitions were entirely based on animus? It’s an indefensible position. That makes no sense at all.” (BP)
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