HRC Blog

New Alliance for Justice Report Asks, “What about Congress?”

Post submitted by Michelle D. Schwartz, Alliance for Justice Director of Justice Programs.

When our founding fathers wrote the Constitution, they dedicated the first—and longest—article to the legislative branch, earning Congress the distinction of being the “first branch.”  Yet today, Congress comes in a distant third in standing up for the equality of LGBT Americans.

In June, five Supreme Court justices took a step forward for equality and fairness when they declared unconstitutional the portion of the so-called Defense of Marriage Act prohibiting the federal government from recognizing lawful same-sex marriages.  As Justice Kennedy wrote for the majority in United States v. Windsor:

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

As the judicial branch’s job in Windsor ended, the executive branch’s work was just beginning.  The Obama Administration had signaled its opposition to denying benefits to same-sex spouses by refusing to defend DOMA in the courts, but now it had to do the real work of figuring out how—and on whom—to confer those benefits.  The Administration has wasted little time, with rulings implementing Windsor already coming from numerous agencies.

With all this activity in the judicial and executive branches, some might think the legislative branch—the original culprits in passing DOMA—could be let off the hook.  But that is far from the case.  A new Alliance for Justice report, The First Branch: How Congress Can and Must Repair the Damage—and Build on the Limited Progress—of the 2012-13 Supreme Court Term, brings to light Congress’s unfinished business:

While the Windsor decision is an important step forward, it left much inequality intact. The decision did not have any effect on Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages from other states.  . . .  The Windsor decision also did not change many other ways in which LGBT people are discriminated against, such as workplace discrimination.

AFJ’s report calls on Congress to finish the job by passing the Respect for Marriage Act, which would repeal DOMA in its entirety, and the Employment Non-Discrimination Act, which would protect LGBT Americans against workplace discrimination.

Congress must act if it’s going to be the first branch in more than name only.

Michelle D. Schwartz is Director of Justice Programs at Alliance for Justice, www.afj.org, where she works for a federal judiciary that guarantees the rights of all Americans.  She previously served as Deputy Chief of Staff to U.S. Senator Frank R. Lautenberg (D-NJ).  Follow Michelle @SchwartzAFJ.

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