Fifteen states request Supreme Court review of DOMA
August 09, 2012
Today, the state of Indiana and fourteen other states (AL, AK, AZ, CO, GA, ID, KS, MI, NE, OK, SC, SD, TX and VA) filed an amicus brief in Gill v. Office of Personnell Managaement, one of the most prominent court cases challenging the constitutionality of the so-called Defense of Marriage Act. DOMA is the 1996 law that prohibits federal respect for same-sex couples' lawful marriages.
In May, the U.S. Court of Appeals ruled in Gill that DOMA's Section 3, which restricts marriage to different-sex couples, is unconstitutional. In the ruling, Republican-appointed Judge Michael Boudin explained that the federal government had no legitimate justification for withholding from married same-sex couples and their families the more than a thousand federal protections and responsibilities otherweise provided to all married couples. DOMA has also been ruled unconstitutional in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, Windsor v. United States, Pedersen v. O.P.M., and Golinski v. O.P.M.
Today's brief from these fifteen states asks the U.S. Supreme Court to review Gill v. O.P.M. and to uphold federal discrimination against couples legally married in states such as New York, Iowa, and Massachusetts. The core argument made is a rehash of the familiar non-sequitur that same-sex couples should not be allowed to marry because they cannot biologically procreate. The brief explains:
As Congress and forty-two States recognize, the different procreative capacities of same-sex and opposite-sex couples support a constitutionally legitimate distinction for defining marriage andaffording special benefits to its participants. Traditional marriage and benefit policies further state interests in responsible procreation byencouraging biological parents to remain together, a rationale that cannot extend to same-sex couples. Congress and the States may conclude that discarding a distinction so deeply rooted in history and social experience could carry undesirable consequences, particularly where such change would utterly negate any apparent rationale for the government to afford special recognition and benefits to a limited set of relationships as "marriages."
Review is justified not only because the decisionbelow invalidated a federal statute, but also because it denies any relationship between DOMA and responsible procreation, and thereby casts doubt on all traditional marriage laws.
The procreation arguemnt, of course, ignores different-sex married couples who choose not to have kids, as well as those who are biologically incapable of procreation; marriage is not just for the procreative, as even Justice Scalia has noted in the historic Lawrence v. Texas case. The brief also insinuates that same-sex couples are not fit to be parents through adoption or other forms of procreation, a claim repudiated by every significant public health and child-welfare authority, from the American Academy of Pediatrics to the American Medical Association, from the National Association of Social Workers to the National Education Association.
The brief also worries that overturning DOMA would infringe on states' abilities to exclude same-sex couples from marriage:
It requires no great leap of logic to conclude that a judicial declaration that DOMA serves no legitimate government purpose erodes the constitutional support for similar state laws. The same equal protection principles have generally applied to state and federal laws. Therefore, if the federal government has no legitimate reason to define for the purpose of federal programs, considerations of tradition or gradualism are unlikely to save state marriage laws - especially those that differentiate between opposite-sex and same-sex unions in name only.
Ironically, it is DOMA that infringes on the states' rights, imposing a radical and unprecedented federal intrusion into a domain formerly left primarily to the states - determining who gets married, and then having the federal government respect those marriages. Under DOMA, marriages celebrated in Massachusetts, Vermont, New Hampshire, Iowa, Connecticut, New York, and Washington, D.C. are disrespected at the federal level because of DOMA, and the states are forced by DOMA to have two classes of married people - federally respected and federally disregarded - instead of one. Overturning DOMA would not force any state to change its marriage laws, but would, instead, return the federal government to the longstanding practice of honoring equally the lawful marriages celebrated in the states.
This brief is the latest to formally request the Supreme Court to formally review a challenge to DOMA. Previous briefs have been filed by the U.S. Department of Justice, attorneys for Edith Windsor, and the state of Massachusetts - all of whom support the repeal of DOMA - as well as the Bipartisan Legal Advisory Group, which is working to defend DOMA in court.
Freedom to Marry doesn't agree on much with organizations or individuals who support DOMA - we stand very much against DOMA proponents' assertions that loving and committed same-sex couples should not be allowed to marry, we oppose the idea that legal marriages between same-sex couples should not be respected at the federal level, and we (like all leading experts and authorities) reject the notion that children raised by same-sex couples should be denied the protections that marriage would bring their families.
But we do agree that the Supreme Court should review one or more of these cases that challenge the discriminatory DOMA. More than half a dozen federal courts - including judges appointed by presidents Nixon, Ford, Reagan, and both Bushes - have found DOMA unconstitutional. We look forward to the day where DOMA is struck down once and for all so that married same-sex couples can share in the federal protections and responsibilities provided to all other married couples, their kids, and those who deal with them.