DOJ challenges DOMA constitutionality

Gayly Staff Report

The Department of Justice filed a brief Friday with the US Supreme Court challenging the constitutionality of the Defense of Marriage act. The court will consider DOMA in the upcoming case United States v. Windsor.

Edith Windsor is an 83 year old lesbian, whose partner Thea Spyer died in 2009. Although together for 44 years, they were married in Canada in 2007. When Spyer died, the Internal Revenue Service collected over $363,000 in inheritance taxes. Windsor sued, believing that the US unconstitutionally fails to recognize same-sex marriages performed in jurisdictions where it they are legal. Such marriages are legal in nine US states and the District of Columbia, in all of Canada, and in several European countries.

The Obama administration has long asserted that DOMA is unconstitutional and have refused to defend it in court. They have, however, continued to enforce it. In the brief filed Feb. 22, the DOJ cites the “Constitution’s guarantee of equal protection of the laws” applicable under the Fifth Amendment.

It asserts “Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”

To support its case, DOJ not that gay and lesbian people have been subject to a significant history of discrimination in the US. Until the court’s decision in Lawrence v Texas in 2003 private gay sexual conduct was a criminal act in many states. It continues, “In addition, gay and lesbian people have long suffered discrimination in employment, immigration, criminal violence, child custody, police enforcement, voter referenda, and other contexts.”

The brief also states that “Sexual orientation is a core aspect of identity. Its expression, particularly in loving and committed relationships, is an ‘integral part of human freedom.’” It continues “There is broad scientific and medical consensus that sexual orientation is typically not a voluntary choice, and that efforts to change an individual’s sexual orientation are generally futile and potentially harmful.”

The document considers some of the laws stated purposes, such as “asserting moral disapproval of homosexuality” and says the court explained in Lawrence that “the fact that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” It also says that the act does nothing to promote traditional, heterosexual marriage.