February 26, 2013
By Scottie Thomaston
“As this court has already recognized, laws burdening lesbians and gay men that were ‘once thought necessary and proper’ may in fact ‘serve only to oppress,'” lawyers for Windsor wrote, quoting from two earlier opinions supporting equal rights for gays and lesbians that were written by Justice Anthony Kennedy — likely a key vote in Windsor’s case.
“[G]ay couples like Ms. Windsor and Dr. [Thea] Spyer marry for the same reasons straight couples do — to express their love and commitment to each other,” Windsor’s legal team, led by Roberta Kaplan of Paul Weiss, argue.
We will have more updates soon…
The brief states:
DOMA’s discriminatory treatment of married gay couples violates Ms. Windsor’s right to the equal protections of the laws as guaranteed by the Fifth Amendment
And on the political powerlessness of gays and lesbians:
The fact that gay couples are the only legally married couples in the entire nation who cannot benefit from the wide range of federal benefits provided to all other legally married couples is itself powerful evidence of gay people’s ongoing political vulnerability.
Interestingly the brief argues that Section 3 of DOMA exempts gay and lesbian married couples from certain restrictions and obligations:
At the same time, DOMA exempts married gay couples from federal restrictions and duties, such as the financial disclosure requirements that apply to the spouses of federal officials. See 5 U.S.C. App. 4 §§ 102, 103, 109; see also Br. of Amici Curiae Former Federal Election Commission Officials. DOMA also prevents the federal government from enforcing laws against third parties where those laws depend on marital status. For example, it is a federal crime to retaliate against a federal law enforcement official by threatening or injuring his or her spouse. See 18 U.S.C. § 115(a), (c)(2). Under DOMA, however, the federal government cannot use this law to prosecute the murderer of a gay FBI agent’s spouse. See Br. of Amicus Curiae Citizens for Responsibility & Ethics in Washington.
On BLAG’s “equal application” argument:
BLAG floats the curious suggestion that DOMA “does not classify based on a married couple’s sexual orientation,” because it is theoretically possible that a man and a woman, each of whom is gay, would marry each other and be treated as married, while two straight men who married each other would be treated as unmarried. BLAG Br. 25 n.7. Ifthe Court were to accept that reading of DOMA – based, though it is, on a highly implausible, unrealistic view of who marries whom – then DOMA would constitute sex discrimination, which since the time of Frontiero, 411 U.s. 677, has triggered heightened scrutiny. See Br. of Amicus Curiae National Women’s Law Center et aI.
And there’s this:
The continued antipathy to gay people is reflected in the tone and content of many of the amicus briefs submitted in this case in support of BLAG. Amici refer to gay men and lesbians as “immoral,” Br. of Amici Curiae Chaplain Alliance for Religious Liberty et al. 18; Br. of Amicus Curiae Westboro Baptist Church, “sinful,” Br. of Amici Curiae Catholic Answers et al. 13, “radically disrupt[iveJ to society,” Br. of Amicus Curiae Manhattan Declaration, “abhorred and opposed,” Br. of Amicus Curiae Foundation for Moral Law 3, and a ”vector of injury and disease,” Br. of Amicus Curiae David Boyle 3. One set of amici argues that overturning DOMA will “make it more socially acceptable for fathers to leave their families.” Br. of Amici Curiae Robert P. George et al. 22. Another compares the recognition of Ms. Windsor’s marriage by New York to the “Fugitive Slave Act … that forced residents of New York … to … assist their slave-state neighbors to return slaves who had escaped back to slavery.” Br. of Amicus Curiae Dovid Z. Schwartz 20. Still another analogizes “same-sex marriage advocates” to the “pro-slavery advocates of the 1850’s.” Br. of Amicus Curiae Eagle Forum 13.
h/t Kathleen for the filing