On Friday, President Obama’s Solicitor General, Donald Verrilli, filed a brief in United States v. Windsor, a case urging the Supreme Court to outlaw Section 3 of a 1996 federal law that prohibits the federal government from recognizing same-sex marriages.
The Defense of Marriage Act or DOMA, the Obama administration contends, “denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” does not substantially further “any important governmental interest” and is thus unconstitutional, violating “the fundamental constitutional guarantee of equal protection.” Here are the six most pro-equality arguments in the administration’s brief:
1. Section 3 “denies to legally married same-sex couples many substantial benefits afforded to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax, and other laws.” For instance, a same-sex spouse of an “active-duty military servicemember is excluded from certain housing, healthinsurance, and disability benefits that would be afforded to an opposite-sex spouse…. A non-citizen same-sex spouse of a United States citizen cannot qualify as the citizen spouse’s immediate relative for purposes of obtaining lawful permanent residence. ”
2. Gay and lesbian people have been subject to a significant history of discrimination in this country. Until Lawrence v. Texas, 539 U.S. 558 (2003), criminal laws in many states prohibited their private sexual conduct. In addition, gay and lesbian people have long suffered discrimination in employment, immigration, criminal violence, child custody, police enforcement, voter referenda, and other contexts. “That history ranges from colonial laws ordering the death of “any man [that] shall lie with mankind, as he lieth with womankind,”… to state laws that, until very recently, “demean[ed] the[] existence” of gay and lesbian people.”
3. Sexual orientation is such a “distinguishing characteristic,” and that is true even though so many gay and lesbian people have been forced for so long to hide their identities in order to avoid discrimination. As this Court has recognized, sexual orientation is a core aspect of human identity, and its expression is an “integral part of human freedom.”
4. The “broad consensus in the scientific community is that, for the vast majority of people (gay and straight alike), sexual orientation is not a voluntary choice.There is likewise a medical consensus that efforts to change an individual’s sexual orientation are generally futile and potentially dangerous to an individual’s well-being. Accordingly, sexual orientation readily constitutes an “obvious, immutable, or distinguishing characteristic” for purposes of equal-protection law.”
5. “No sound basis exists for concluding that same-sex couples who have committed to marriage are anything other than fully capable of responsible parenting and child-rearing. To the contrary, many leading medical, psychological, and social-welfare organizations have issued policy statements opposing restrictions on gay and lesbian parenting based on their conclusions, supported by numerous scientific studies, that children raised by gay and lesbian parents are as well adjusted as children raised by heterosexual parents.”
6. If anything, “the denial of federal benefits otherwise accorded to married individuals undermines the efforts of same-sex couples to raise their children, hindering rather than advancing any interest in promoting child welfare.”
The brief also cites California’s Proposition 8 “as an example of the ongoing problem of bias against homosexuals.” Obama is reportedly considering asking the Court to overturn California’s ban against same-sex marriage before it hears oral arguments in that case on Tuesday, March 26. The Windsor case will be heard on Wednesday, March 27.
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