Gearing up to argue for gay marriage before the U.S. Supreme Court next month, White House Solicitor General Donald Verrilli plans to argue that California’s 1996 “Defense of Marriage Act” [DOMA] violates the 14 Amendment’s Due Process clause. Verrilli believes DOMA’s Section 3, which bars recognition of same-sex marriage in the granting of federal benefits including Social Security survivors’ benefits, immigration insurance benefits for government employees and filing joint tax returns, violates the Fourteenth Amendment. Section 3 “targets the many gay and lesbian people legally married under state law for harsh forms of discrimination that bears no relation to their ability to contribute of society,” said Verrilli. Verrilli’s arguments against DOMA are all based on whether or not the Supreme Court views sexual-orientation as a legitimate civil right.
When same-sex marriage was first litigated before Massachusetts’ High Court in 2004, the High Court concluded that the state’s Domestic Partnership Law violated the civil rights of gays and lesbians. Viewing sexual orientation as a civil right opened the door for the Massachusetts High Court to litigate sex orientation issues on the 1954 landmark ruling Brown v. Board of Education. Creating Domestic Partnerships created a “separate but equal” class of citizens applied to sex orientation. Everyone knows that Brown v. Board of Education had to do with racial discrimination. In arguing before the Supreme Court, Verrilli won’t have the luxury to push the High Court to rule on extending civil rights to sex orientation cases. “It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest,” said Verrilli.
Extending civil rights to sex orientation issues stretches the Bill of Rights beyond its original intent to assure that the government protects African American citizens against various types of racial discrimination. If the Supreme Court buys Verrilli’s argument that the Bill of Rights extends to gender issues, then the High Court will accept Verrilli’s arguments. “The statue simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated,” said Verrilli leaping to conclusions, without knowing whether or not the High Court will buy the Equal Protection argument. “Tradition, no matter how long established, cannot by itself justify discriminatory law under equal protection principles,” wrote Verrilli in his brief, referring to historic definitions of marriage between men and women.
House Speaker John Boehner (R-Ohio), who leads the Bipartisan Legal Advisory Group, argues that the gay marriage issue should be left to the states, not litigated in the Supreme Court. Boehner’s brief to the High Court indicates that gays and lesbians have plenty of recourse through their respective lobbying groups. “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,” said Boehner’s brief the Court. What Boehner and the anti-gay lobby don’t want is for the Supreme Court to recognize gay rights as civil rights, applying settled Constitutional law to apply to gays. When the High Court debates and rules on California’s Prop 8, Boehner hopes they rule it’s not a federal issue.
When the Supreme Court meets next month, they’ll hear the DOMA case of Edith Windsor who was forced to pay $363,000 in federal estate taxes when her spouse Thea Spyer died in 2009 because their Canadian same-sex marriage was not recognized by the government. Under current federal law, the government is not forced to recognize same-sex marriage, despite the fact that it’s legal in nine states, including the District of Columbia. Recognizing same-sex marriage would cost the U.S. Treasury untold amounts of estate taxes and federal benefits paid to same-sex couples or surviving spouses. When arguing her case before the lower courts, Windsor seeks recognition of her marriage to capitalize on current federal estate tax laws. Without establishing a valid marriage, Windsor doesn’t have a leg to stand on. DOMA laws currently protect the federal government against such claims.
Presenting his ideas in his Jan. 21 Inaugural Address, President Barack Obama let out his views about same-sex marriage. “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well.” While its tempting to apply existing civil rights law on sex orientation, it’s not yet settled by the Supreme Court whether gay or lesbian issues fall under the Bill of Rights. “Next week I think we will see the government urging the same standard review be used to overturn Prop 8, and with it, all anti-gay marriage laws,” said Richard Socarides, a gay rights advocate and former advisor to President Bill Clinton. While Verrilli will pitch the White House case, a conservative majority on the Supreme Court prefers to let the states settle sex orientation issues.
About the Author
John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He’s editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.