LGBT issues

by Brian Moulton, Legal Director, Human Rights Campaign. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

Alongside the core due process and equal protection considerations about marriage equality before the Supreme Court in Windsor v. United States and Hollingsworth v. Perry is a question that could have broader ramifications in the movement for lesbian, gay, bisexual and transgender equality – whether laws that discriminate based on sexual orientation should be subject to some form of heightened judicial scrutiny. 

To date, the Supreme Court has not directly addressed the question of whether heightened scrutiny should apply to laws that discriminate against gays and lesbians. While many of the U.S. Courts of Appeal have done so, and answered in the negative, those precedents were almost universally dependent on the Court’s decision in Bowers v. Hardwick upholding the constitutionality of sodomy laws, a decision that was repudiated nearly a decade ago in Lawrence v. Texas, leaving those precedents standing on the shakiest of ground. It is no wonder then that, in one of the first post-Lawrence cases to consider the issue, the Second Circuit in Windsor concluded that heightened scrutiny should indeed apply to sexual orientation-based classifications.   

In its heightened scrutiny analysis, the Court has typically looked at whether the group defined by the classification in question has experienced a history of discrimination and whether that classifying characteristic is relevant to an individual’s ability to contribute to society. The Court has sometimes considered two additional factors: whether that defining characteristic is immutable, and whether the group is politically vulnerable.    

by Jeremy Leaming

It took him long enough to disown one of his more atrocious antigay actions he took as president, but Bill Clinton has finally called for the demise of the so-called Defense of Marriage Act.

In a column for The Washington Post, Clinton writes, “On March 27, DOMA will come before the Supreme Court, and the justices will decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact incompatible with the Constitution.”

There are two cases the U.S. Supreme Court will hear at the end of this month that raise constitutional issues surrounding marriage equality. In Hollingsworth v. Perry, the justices will consider whether California’s Proposition 8 subverted the equality rights of gay and lesbian couples, and in U.S. v. Windsor, the justices will weigh the constitutionality of a DOMA that bars the federal government from recognizing same-sex marriages, denying scores of federal benefits to couples who have been wed in states that recognize same-sex marriages.

The Obama administration has lodged briefs in both cases with broad calls for equality. Scores of other organizations have lodged friend-of-the-courts briefs arguing for and against marriage equality. (SCOTUSblog provides access to all those briefs here and here.)

The merits brief on behalf of Edith Windsor, the woman challenging the constitutionality of the DOMA provision, advances a resounding call for an end to federal discriminatory treatment of lesbian and gay couples.

Under DOMA the brief notes that the “federal government regards gay couples as not married even if they are married under state law.” [Nine states and the District of Columbia recognize allow same-sex couples to wed.]

“DOMA excludes married couples who are gay,” the merits brief continues, “from all the rights, privileges, and obligations that the federal government otherwise affords married couples. Ms. Windsor’s situation is representative. In addition to be being denied the ability to claim the estate tax deduction on behalf of her deceased spouse’s estate, she has also been denied the Social Security death benefit to which surviving spouses are normally entitled.”

Beyond going through all the federal benefits gay couples are denied because of DOMA it also provides a history of the creation of the discriminatory law. It notes, for instance, that DOMA “sped through Congress in large part because of the strong views many members of Congress expressed at the time about the morality of being gay. During one day’s debate, a Representative declared homosexuality ‘is based on perversion, that it is based on lust.”