Political Successes do not Disqualify DOMA Challenge

Michael A. Tew

If we are to believe the House GOP, an influential, well funded, well organized and politically connected interest group is not deserving of judicial intervention. I’m confused are they talking about the LGBT movement in its challenge to DOMA or American corporations in the Citizens United case? In its brief on the DOMA case coming before the Supreme Court, the Republican controlled Bipartisan Legal Advisory Group is spending 3 million tax payer dollars to make fundamentally flawed and counterfactual arguments. Let’s start with the easy one first.

Paul Clemens’ brief “asserts that DOMA does not attempt to exclude anyone from government benefits, and seeks only to define marriage for the purposes of federal laws and programs” (as reported by LGBTQ Nation, 1/23/13). Evidently, House leadership believes that effective advocacy implies the absence of discriminination. There are over one thousand federal laws in which marriage status is a factor. These laws confer rights, protections, and benefits to married couples. Partners in same-sex couples cannot receive these important benefits — from Social Security survivor benefits to federal tax benefits to federal employee health and retirement benefits (NOLO.com). DOMA enabled laws and programs define the conditions for benefits. DOMA is directly responsible for establishing the framework for the denial of benefits by creating federal privileged and marginalized classes of citizens. The purpose of DOMA is exactly contrary to the GOP claim. The most rudimentary historical research will report “definitional” classes established by the federal government which resulted in discrimination. Whether defining citizen, property, or anything else, those have all rightly found their way into the dustbin of unconstitutionality. We should also think about the hypocrisy of resisting this definitional change by considering conservative attmpts to redefine personhood.

The other major flaw in the House argument
demonstrates a troubling misrepresentation of discrimination. “…gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history…there is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fast moving as same-sex marriage.” (BLAG brief in DOMA challenge case as reported by LGBTQ Nation). As argued in the Brown Political Review (12/1012), “While gays and lesbians have not been isolated from the political process in the sense that they have been denied the franchise, the persistence of discriminatory laws against them in most states indicates that the ordinary mechanisms of democratic action fail to protect them from tyranny of the majority.”

Further, the view of the majority of Americans diverges from the implication of the House brief. “Sixty-three percent of Americans describe discrimination against gays and lesbians as a “very” or “somewhat serious” problem in the United States. Americans who identify themselves as lesbian, gay, bisexual, or transgender (LGBT) are even more likely to see discrimination as a serious problem, at 88%,” (Gallop, 1/24/13). Organization and political influence are signs of effective advocacy not evidence of too much power to be protected. Discrimination and bias are the reasons for advocacy. The law does not consider funding. The law does not consider clout. The law considers equality. LGBT couples are not treated equally at the federal level. Period.

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About Equality Research Center

The mission of the Equality Research Center is to promote, support, and disseminate research focused on Lesbian, Gay, Bisexual, and Transgender equality and human rights. The Center is dedicated to the advancement of Equality by connecting academic, evidence based research to community action, public policy, and curricular innovation.
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