2011-JUL-11: Plaintiff's lawyers criticize BLAG's "Failure to Respond:"
Edit Windsor's lawyers filed a complaint with Judge James Francis -- the magistrate judge who is overseeing the discovery or evidentiary portion of her case. They were critical of the Bipartisan Legal Advisory Group's (BLAG) lack of response to their request.
Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP, discussed:
"... the obligations that come with party status include good faith participation in and compliance with the discovery process. ... In attempting to justify its failure to respond, BLAG has not objected on the ground that plaintiffs requests seek information that is not relevant or is not reasonably calculated to lead to the discovery of admissible evidence. Nor has BLAG identified any substantial burden in responding to plaintiffs requests. Rather, BLAG appears to have simply made the tactical decision that it would prefer not to respond substantively to plaintiffs requests for written discovery. This, however, the Federal Rules of Civil Procedure do not permit.
The ACLU's legislative representative, Ian Thompson, said:
"It simply defies logic that on the eve of a landmark congressional hearing that will explore how a federal law has led to the discriminatory treatment of tens of thousands of gay and lesbian couples and their families that the House BLAG can't even admit that there has been a long, and very well-documented history of discrimination against lesbians and gay men in this country."
"Further ... they refuse to admit that lesbians and gay men have been denied jobs and other opportunities in the U.S. as a result of their sexual orientation. Have they never heard of Executive Order 10450, which was signed by President Eisenhower in 1953, and had the result of requiring the termination of all gay people from federal employment?" 1
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2011-JUL-26: NY Attorney General's office files amicus curiae declaration:
New York Attorney General Eric Schneiderman, and other members of his office, filed an amicus curiae (friend of the court) brief at the U.S. District Court for the Southern District of New York in Manhattan. 2,3 Supporting Edith Windsor's case, the brief says that the Defense of Marriage Act (DOMA) violates the rights of same-sex married couples to receive equal protection from the federal government. It is in conflict with the fifth amendment of the U.S. Constitution, and is thus unconstitutional. The brief argues that DOMA intrudes upon the traditional right of state to regulate marriage. It says in part:
"New York enacted the Marriage Equality Act, ... which allows same-sex couples to marry in New York. This statute represents the next step along a path on which New York long ago embarked, the path of extending equal treatment under law to same-sex couples. ..."
"Despite the long-standing tradition of state control over the definition of marriage, Section 3 of DOMA redefines marriage for federal purposes to exclude same-sex marriages that are valid under state law. ... By discriminating among married couples based on [their] sexual orientation and sex, DOMA deprives New York [State] of the ability to extend true equality to all marriages valid in the State. ... By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States,
and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex."
"For each of these reasons, considered separately or together, DOMA should be subjected to heightened scrutiny under the equal protection component of the Fifth Amendment, and it cannot withstand such scrutiny. ... DOMA fails such heightened constitutional scrutiny because it discriminates between same-sex married couples and different-sex married couples without serving any important federal interest, and therefore violates the equal protection component of the Fifth Amendment. ..."
"Moreover, a statute is
unconstitutional even under rational-basis review if it reflects 'a bare congressional desire to harm a politically unpopular group.' ... DOMA falls squarely within this category because Congress sought to harm married same-sex couples, and therefore the Court should invalidate DOMA under any applicable standard of review. ..."
"Section 3 of DOMA does not merely determine eligibility for a particular federal program. It literally redefines the term marriage, and it does so in a blunt,
across-the-board manner that has no connection to the particular contexts in which federal laws rely on marital status. This interferes with New York’s exercise of its sovereign authority to define marriage and to eliminate discrimination based on sexual orientation. ..."
"... the Supreme Court [has] recognized that since the creation of the Constitution -- more than 200 years before the passage of DOMA -- the definition of
marriage was within the province of the States ... Until
DOMA, federal law generally treated the definition of marriage as a subject within the control of the States. ..."
"In sum, DOMA does not advance any legitimate governmental interest. It
cannot survive the scrutiny that is warranted because of the groups that it
disadvantages and because of the intrusion on an area that is at the heart of state sovereign power. Accordingly, it must be invalidated as a violation of the equal protection component of the Fifth Amendment’s Due Process Clause. ... This Court should grant plaintiff’s motion for summary judgment and declare
section 3 of DOMA unconstitutional." 3,4,5
He also explained why the Tenth amendment of the U.S. Constitution is relevant in this case:
"Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: 'By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.' [Bond v. United States, 131 S. Ct. 2355, 2364 (2011)]. The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that '[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.' [United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring)]. So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern." 6,7
2011-AUG-01: BLAG files motion to dismiss case:
The Republican majority on The House Bipartisan Legal Advisory Group (BLAG) overruled the group's Democratic minority and filed a motion to have Windsor vs. United States dismissed. Attorney Paul clement of Bancroft PLLC wrote the motion. He argued that Ms. Windsor does not have a legal claim because DOMA was properly applied in her case and is constitutional. 8
His motion maintains that marriage is not a fundamental right for same-sex couples even though the District of Columbia and some states have declared it so. He also argued that cases involving homosexual rights should not be subjected to heightened scrutiny. This means that the constitutionality of DOMA should only be analyzed on a "Rational basis." This is the lowest possible level of scrutiny, and only requires that some kind of linkage be found between the DOMA law and the furthering of some legitimate legislative goal.
The BLAG motion recommends "caution" in response to the decision by DC and some states to authorize same-sex marriages (SSMs). They describe SSM to be "a proposed novel redefinition of the foundational social institution. ... As an empirical matter, the long-term social consequences of granting legal recognition to same-sex relationships remain unknown."
Over twenty years ago in Hawaii, SSM was a "proposed novel redefinition" of marriage. However, SSM has been in place in Massachusetts for over 7.5 years and that state continues to have the lowest divorce rate in the nation. SSM has been available in Canada for over 6 years and is now an accepted part of their culture.
In general, granting people equal rights, as in the abolition of human slavery, allowing women to enter professions, giving women the vote, abolishing racial segregation, allowing interracial marriages, etc. have all resulted in improvements in people's lives without any significant negative effects on the culture. Marriage generally results in a decrease in "wild and crazy behavior," lengthened life expectancy, an increase in quality of life, a lowering of blood pressure, an improvement in overall health, and increased exercise due to more frequent sexual activity. 9 It lowers the rate of promiscuity and the incidence of sexually transmitted infections. It gives couples greater security for themselves and their children. For the Federal Government to refuse to recognize legal same-sex marriages places couples at a severe disadvantage.
BLAG also argued:
"Whether or not same-sex marriages are as beneficial to society as traditional marriage in other respects, it would have been reasonable for Congress to have been concerned that defining same-sex relationships as 'marriages,' despite the fact that they necessarily cannot result in children without assistance—and are (and particularly in 1996, were) less likely to involve children—would weaken society's understanding of the importance of marriage for children."
BLAG overlooks the fact that one of the major rights of individual states is to define who is eligible to marry within their borders. It is governments of the District of Columbia and the 50 states that establish the criteria to be met before a couple can marry. It is they who define marriage, not Congress. The DOMA law has wrenched a basic right away from states that had been theirs for centuries.
We cannot understand their reference to same-sex couples needing assistance to have children. They are exactly in the same situation as every opposite-sex couple in which one spouse is infertile. Both kinds of couples need assistance in childbearing. Yet we have never seen any legislator suggest that only fertile opposite-sex couples be allowed to marry.
Every unmarried couple who has children weakens "... society's understanding of the importance of marriage for children." Thus it would appear logical that if governments feel that the institution of marriage is important to children and to the country generally, they should encourage all parents to marry, including same-sex parents. BLAG's argument doesn't seem to make sense.
However, BLAG's motion is consistent with a belief system found throughout conservative religious faith groups: that homosexual behavior is a choice whose main cause is bad parenting in the individual's family of origin, and that it can be readily changed through prayer and/or reparative therapy. They might have taken the position that lesbians and gays can simply change to heterosexuality and get married to an opposite-sex couple. Since these same groups generally teach that all homosexuals will end up in the torture chambers of Hell, to pressure them to become "straight" might be seen as a benefit.
However, LGBT-positive groups, all the major psychiatric and psychological professional associations, the vast majority of human sexuality researchers, religious liberals, some mainline religious groups, etc. teach opposite beliefs -- that homosexual orientination is something that one discovers, whose main cause is genetic, and that it is fixed in adulthood.
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References used:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Chris Geidner, "Edith Windsor's Lawyers Slam BLAG's 'Failure to Respond' in DOMA Challenge," Metro Weekly, 2011-JUL-19, at: http://www.metroweekly.com/
"New York challenges Defense of Marriage Act," Reuters, 2011-JUL-26, at: http://www.reuters.com/
Eric T. Schneiderman, et al., "Brief for the State of New York as Amicus Curiae in support of the plaintiff," NY Attorney General's office, 2011-JUL-26, at: http://www.ag.ny.gov This is a PDF file.
Chris Geidner. "One State, Two Lawsuits. Empire State marriage opponents and supporters head to court," Metro Weekly, 2011-JUL-28, at: http://www.metroweekly.com/
Thomas Kaplan, "New York Challenges U.S. Defense of Marriage Act," City Room blog, New York Times, 2011-JUL-26, at: http://cityroom.blogs.nytimes.com/
Chris Geidner, "New York Attorney General Takes Edith Windsor's Side in DOMA Challenge," Metro Weekly, 2011-JUL-26, at: http://metroweekly.com/
Simon Heller, "Brief for the State of New York as Amicus Curiae in support of the plaintiff," 2011-JUL-26, at: http://metroweekly.com/
Chris Geidner, "House GOP Leaders Say Court Should Dismiss Edith Windsor's Lawsuit, Find DOMA Constitutional," Metro Weekly, 2011-AUG-02, at: http://metroweekly.com/
Dr. Mike Roizen & Dr. Mehmet Oz, "Say 'I do' for better health," medical column, 2011-OCT-20, at: http://www.thestar.com/
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