House Lawyers Explain Why Discrimination Against Gays and Lesbians is Okay
August 3, 2011 by Brian Moulton, Legal Director
On Monday, lawyers for the House Bipartisan Legal Advisory Group (BLAG) filed their latest arguments using your taxpayer dollars to defend the discriminatory Defense of Marriage Act (DOMA) in federal court, in Windsor v. United States. As you’ll recall, in that case, Edie Windsor is challenging the hefty tax penalty she faces as she inherits her late wife’s estate because of DOMA, a penalty that would not apply if her spouse had been a man.
For the first time, BLAG lawyers have put pen to paper to explain why laws that discriminate against gays and lesbians should not be subject to a more thorough review – better known as “heightened scrutiny” – by the courts. When deciding whether to apply heightened scrutiny, courts typically consider two factors: (1) whether there is a history of discrimination based on the characteristic and (2) whether the characteristic is relevant to one’s ability to participate in or contribute to society. They sometimes also consider (3) whether the characteristic is immutable and (4) whether the group is particularly vulnerable politically. The BLAG’s brief addresses all these factors, making statements that are simultaneously homophobic and unconvincing.
The brief touches very lightly on the first two factors, the ones that courts consistently weigh, arguing instead that all four factors are must be taken into account. Citing an LGBT historian, the BLAG lawyers claim that there is no substantial history of discrimination against gays and lesbians, as “a consequence of the fact that homosexuality – as a distinct category or class – was not even recognized in the United States until the late nineteenth century.” Apparently, in their minds, because it took so long for a courageous few to begin identifying themselves as gay or lesbian –in the face of the overwhelming risk of losing employment, having custody of children torn away, being ostracized from friends and family, and even becoming a victim of hate violence or spending years in prison— there is insufficient history of discrimination to support heightened scrutiny. They go on to contend that “how quickly things are changing” for gays and lesbians should also count against us. And on the second factor, the BLAG lawyers simply skirt the tough question of whether sexual orientation bears any relation to ability to perform or contribute to society. Despite it being a core factor in the heightened scrutiny analysis, in three short paragraphs their brief contends that it is “hardly the sum total” and simply reiterates their belief that Congress had good reasons to enact DOMA.
Most of their brief is spent, instead, trying to convince the court that sexual orientation is not immutable and that gays and lesbians have inordinate political power. First, the BLAG lawyers argue that, because there is some variation in the ways terms like “gay,” “lesbian” and “homosexual” are defined and understood, they “are amorphous and do not adequately describe a particular class.” In addition, their brief questions immutability because sexual orientation is not clear at birth (citing an expert who stated, “[L]ooking at a newborn, I would not be able to tell you what that child’s sexual orientation is going to be”) and because some experts have observed that some people’s sexuality is more fluid than others. Notably, the brief ignores both the broad body of scientific evidence, professional opinion and popular belief that gays and lesbians cannot change who they are and the so-called “evidence” put forward by anti-equality forces that reparative therapy can change sexual orientation.
But more than a third of the entire brief is spent dwelling on one point – that gays and lesbians are not politically powerless. The BLAG lawyers catalogue recent advances, like the repeal of “Don’t Ask, Don’t Tell” and marriage equality in New York, as evidence that our community has “wielded considerable power” in the political arena and elsewhere. They cite the work of HRC, the Victory Fund and other groups as proof positive that “gays and lesbians have achieved and continue to achieve substantial political success.” They brush aside the fact that in state after state, laws and constitutional amendments have been adopted that deny the dignity and equality of our families, and that gays and lesbians do not enjoy even basic protections against employment discrimination in twenty-nine states. While our recent progress in undeniable, the difficulties facing LGBT families across the country remain enormous. What makes this argument even more shockingly callous is that political powerlessness is not a necessary factor in the heightened scrutiny analysis. The Supreme Court adopted heightened scrutiny for discrimination based on gender in 1971, more than half a century after women won the right to vote and several years after they were included in the Civil Rights Act’s employment protections. And in a more recent case about race and heightened scrutiny, in 1995 the Court concluded that a federal program that favored minority-owned businesses should be reviewed under strict scrutiny, even though that race-based classification disadvantaged a clearly politically powerful majority.
I have no doubt that Edie Windsor and the lawyers at the ACLU, New York Civil Liberties Union, and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison representing her will take these ridiculous arguments apart. And I hope that the BLAG lawyers are right about one thing – that our society has changed enough for gays and lesbians that Judge Francis will not allow a law based in animus toward us to stand.
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