The House Bipartisan Legal Advisory Group this week filed briefs in federal court explaining why the Defense of Marriage Act is not unconstitutional — even though a trial court judge has said it is unconstitutional and the Obama Administration has instructed the Department not to continue to defend DOMA because the administration, also, says the law is unconstitutional.
But Republican Speaker of the House John Boehner, after the administration issues its instructions to the DOJ on DOMA, decided that the House Bipartisan Legal Advisory Group would go ahead and hire an outside attorney to fight for DOMA in court because, apparently, the very idea of the federal government having to recognize legally-sanctioned same-sex marriages is too horrible to even consider.
The briefs filed by BLAG attorney Paul Clement came in connection with Edie Windsor’s lawsuit against the federal government over the $350,000 estate tax she had to pay when her wife, Thea Spyer, died. Windsor and Spyer had been together for 44 years when Spyer died in 2009, and the two women were legally married in Canada in 2007. Even though New York state, where they lived, did not allow legal same-sex marriages to be performed in the state at that time, the state did recognize same-sex marriages performed in jurisdictions where it was legal.
Had Spyer been a man, Windsor would have owed no estate tax when Spyer died. (Windsor is being represented by the American Civil Liberties Union. For more information on the case, go here.)
Windsor and her attorneys claim in court that she should win her suit by default, without the need for a trial, because she is right on the legal arguments and there are no factual disputes. The BLAG briefs filed this week dispute that claim, laying out reasons laws that discriminate against the LGBT community — like DOMA — should not be subject to more thorough review, legally known as “heightened scrutiny.”
According to the Human Rights Campaign, when deciding whether to apply heightened scrutiny, courts typically consider two factors: whether there is a history of discrimination based on the characteristic and whether the characteristic is relevant to one’s ability to participate in or contribute to society. They sometimes also consider whether the characteristic is immutable and whether the group is particularly vulnerable politically.
The BLAG brief addresses all these factors.
Among their arguments, the most notable have been their claim that gays have not historically faced discrimination; they still believe that sexual orientation is a choice, not an identity; due to the recent victories in the LGBT community, they think gays have plenty of political power; despite the findings of an American Psychological Association study saying otherwise, they think same-sex couples make bad parents; and, the ever-popular crutch of the anti-gay marriage fanatics, that they need to protect the institution of marriage from being extended to same-sex couples.
You can go here to read what Zack Ford at Think Progress has to say about BLAG’s claims. And if you want to know more about Edie and Thea and their 44-year love story, watch the video below.