In defending DOMA, House Speaker John
Boehner argues discrimination against gay men and lesbians is
lessening.
House Republicans agreed to defend in
court the Defense of Marriage Act (DOMA), the 1996 law which forbids
federal agencies from recognizing the legal marriages of gay and
lesbian couples, after the Obama administration announced it would no
longer.
In
briefs filed this week in the case of a widow who is challenging
the law, Boehner attempts to minimize the discrimination he is
defending.
The case, now on appeal in New York
federal court, involves Edith “Edie” Windsor, who received an
estate bill of more than $360,000 after the death of her wife Thea
Spyer. The two women shared their lives for 44 years and married in
Toronto, Canada in 2007. In 2009, New York began recognizing the
marriages of gay couples, although gay couples could not enter such
unions in the Empire State. Spyer died in 2009.
Attorney Paul Clement writes:
“[W]hatever the historical record of discrimination, the most
striking factor is how quickly things are changing through the normal
democratic processes on issues ranging from same-sex marriage to
'Don't Ask, Don't Tell' and beyond. Historical discrimination alone
never has been a basis for heightened scrutiny. Courts apply a
multi-factor test that focuses on current reality and cautions
against unnecessarily taking issues away from the normal democratic
process."
(It should be noted that “Don't Ask,
Don't Tell” had been declared unconstitutional by a federal court
before Congress acted.)
House Republicans also argue that being
gay is a choice, suggest gay couples make bad parents, and the gay
community has powerful allies, including President Barack Obama and
New York Attorney General Eric T. Schneiderman, both of whom have
filed friend-of-the-court briefs on behalf of Windsor.
Clement adds that gay and lesbian
couples should be denied equal marriage rights because they cannot
conceive children without the assistance of a third party. “Rational
justifications” for preserving DOMA include “[D]efending and
nurturing the institution of marriage by avoiding the creation of a
social understanding that begetting and rearing children is not
inextricably bound up with the institution of marriage” and
“[D]efending and nurturing the institution of marriage by creating
legal structures that make it more likely that children will be
raised by parents of both sexes.”