DOMA Down, More to Go
February 22, 2012
"In short, this Court holds that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority."
Today's court decision finding DOMA to be unconstitutional is a thing of beauty. The case involves a federal employee, Ms. Golinski, whose partner was denied insurance benefits by her federal employer. The justification for denying these benefits was the Defense of Marriage Act (DOMA), which defines marriage as being between a man and a woman.
The first thing the Court examined was whether gay men and lesbians as a class should be subject to heightened scrutiny—a legal designation which means that they should be afforded heightened protections. To qualify for this status the Court examined several criteria: (1) a history of invidious discrimination; (2) ability to contribute to society; (3) whether the characteristics of the class are immutable; and (4) the political power of the class.
While any one of the factors alone is sufficient to grant the class heightened scrutiny, the Court found that the class of gay men and lesbians met all of the factors.
“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination...Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society...The Court finds that a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it...The Court finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power...In short, this Court holds that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority.” (p. 18-24)
The heightened scrutiny determination is important because, under it, the proponents of DOMA must establish that the classification created by the rule are “at a minimum...'substantially related to an important governmental objective.' Clark, 486 U.S. At 461" (p. 24).
In enacting DOMA Congress offered four justifications: (1)Responsible procreation and child-rearing; (2) nurturing the institution of traditional, opposite-sex marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources.
In defense of same-sex parents, Ms. Golinski, provided evidence from Professor Michael Lamb demonstrating that same-sex parents are equally capable and effective at raising children as are opposite-sex parents. The opposition in challenge to Professor Lamb's conclusions argued that the studies he used had a number of flaws, but the Court dismissed each of them, concluding that “these criticisms of the studies relied upon by Professor Lamb do not alter their validity" (p. 27).
The opposition also cited some of their own sources to counter Professor Lamb's claim. One of which was an article that appeared on Slate.com. To which, the Court had the following to say:
“This is a three-page, non-scientific article by an author with no professional expertise in child development, published by a popular online magazine without peer review” (p. 27).
If only, all such junk evidence could be so easily wiped off of the table.
The Court goes on to say that even if Congress' interest is in responsible procreation and child-rearing, DOMA does nothing to advance that interest and in actuality harms that interest by removing same-sex parents from having the equal protection of the law.
"The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to endanger children of same-sex parents by denying them ‘ "the immeasurable advantages that flow from the assurance of a stable family structure," when afforded equal recognition under federal law.' Gill, 699 F. Supp. 2d at 389 (quoting Goodridge v. Department of Public Health, 440 Mass. 309, 335 (2003))" (p. 28).
DOMA defenders argue that "the institution of opposite-sex marriage is deeply rooted in American law, embedded in history and tradition and has been defined by both by Black's Law Dictionary and the Bible" (p. 37). The Court completely dismisses this argument:
Tradition alone, however, cannot form an adequate justification for a law. [T]he argument that the definition of marriage should remain the same for the definition’s sake is a circular argument, not a rational justification (29 & 37).
The Court entirely rejects the notion of basing legislation upon asserting a sense of traditional morality. "Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny...The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation" (p. 30).
Preserving scarce resources
The Court equally rejects this notion, saying that "there is no evidence in the record to demonstrate that the provision of federal benefits to same-sex married couples would adversely affect the government fisc." (p. 31). Furthermore, even if it were a concern, that would not "justify barring some arbitrarily chosen group from a government program" (p. 31).
"...the Court...cannot conceive of any...interests that DOMA might further
After rejecting the interests that were claimed to be attained by DOMA, the Court than proceeds to hypothesize other possible interests that had not been brought up. The Court mentions three such possible interests: (1) Congressional caution in defining a legislative term and maintaining the status quo; (2) Congressional caution in area of social divisiveness; and (3) consistency. The Court equally rejects all of these hypothetical interests and concludes by saying that "neither the law nor the record can sustain any of the interests suggested, [and] the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further" (p. 42).