Obama
administration to argue for gay marriage in Supreme Court case
The
US Supreme Court next month hears arguments in a case challenging the ‘Defense
of Marriage Act.’ In a brief filed Friday, the Obama administration asserts
that DOMA discriminates against gay and lesbian couples in violation of the US
Constitution.
By Brad Knickerbocker | Christian
Science Monitor – 1
hr 17 mins ago
The Obama
administration has taken another important step in its advocacy of
same-sex marriage, weighing in on an important case to be heard in the US
Supreme Court next month.
The essence of
the administration’s argument is that the 1996 “Defense of Marriage Act” violates the US Constitution in
defining marriage as the legal union between one man and one woman –
specifically Section 3 of DOMA, which bars recognition of same-sex
marriages in the granting of federal benefits including Social
Securitysurvivors’ benefits, immigration, insurance benefits for government
employees, and filing joint tax returns.
In the Justice Department brief filed with the Supreme Court
Friday,Solicitor General Donald Verrilli writes that DOMA’s
Section 3 “targets the many gay and lesbian people legally married under state
law for a harsh form of discrimination that bears no relation to their ability
to contribute to society.”
“It is abundantly clear that this discrimination
does not substantially advance an interest in protecting marriage, or any other
important interest,” Mr. Verrilli writes. “The statute simply cannot be
reconciled with the Fifth
Amendment’s guarantee of equal protection. The Constitution therefore
requires that Section 3 be invalidated.”
The administration made it clear during the latter
half of Mr. Obama’s first term that it would not continue to defend DOMA in the
court cases where it’s been challenged. Taking up DOMA’s defense has been the “Bipartisan Legal Advisory Group” in the US House of Representatives, directed by Speaker
John Boehner to take the place of the Justice Department in arguing
court cases on behalf of the controversial law.
The House brief filed last month asserts that the
same-sex marriage issue should be left to the democratic process and that gays
are quite capable of pursuing their rights in those venues, according to
a Politico analysis.
“Gays and lesbians are one of the most influential,
best-connected, best-funded, and best-organized interest groups in modern
politics, and have attained more legislative victories, political power, and
popular favor in less time than virtually any other group in American history,”
the House brief says.
Homosexual
conduct has a history of being prosecuted as criminal in the United
States. And although same-sex marriages now are legally recognized in nine
states and the District
of Columbia, many more states still have laws aimed at gays and lesbians –
including restrictions on the adoption of children, banning gay marriage,
and refusing legal benefits to same-sex couples.
“Tradition, no matter how long established, cannot
by itself justify a discriminatory law under equal protection principles,” the
Solicitor General writes in his brief.
The Supreme
Court next month also is scheduled to take up California’s Proposition
8, which provides that “only marriage between a man and a woman is valid or
recognized” in the state. Both Prop. 8 and DOMA have been declared
unconstitutional by lower courts.
It’s unclear whether the Obama administration will
weigh in against Prop. 8 as it has with DOMA.
“Next week I think we will see the government
urging the same standard of review be used to overturn Prop. 8, and with it,
all anti-gay-marriage laws,” Richard
Socarides, a gay rights advocate and White
House adviser to President
Bill Clinton, told Politico. “It’s clear from the administration’s DOMA brief
that they understand and now embrace its connection to the Prop. 8 case. The
discrimination evidenced by Prop. 8 itself is cited to support the standard of
review urged by the government to strike down DOMA.”
The DOMA case involves Edith Windsor, who lived
with her partner Thea Spyer for many years. They were married in 2007 in Canada,
returning to their home in New York where
their marriage was recognized by state law. But when Ms. Spyer died in 2009,
Ms. Windsor – because of DOMA – was forced to pay $363,000 in federal estate
taxes that the surviving spouse in a heterosexual marriage would not have to
pay.
As he has
said, President Obama’s position on gay marriage has “evolved” in its
favor.
In his inaugural address last month, he said, “Our
journey is not complete until our gay brothers and sisters are treated like
anyone else under the law – for if we are truly created equal, then surely the
love we commit to one another must be equal as well.”
Polls show a clear shift in public acceptance of
same-sex marriage, especially among under-30 Americans – 63-35 percent approve,
according to a Quinnipiac University poll in December. For all age groups,
Gallup puts the number at 53-46 approval.
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