Inside DOJ's DOMA Brief - A Stirring Documentation of Discrimination; A Devastating Rebuke of Bigotry

Obama RainbowYou already know that President Obama's Department of Justice has taken unprecedented action in favor of LGBT equality and filed a brief in federal court arguing that the Defense of Marriage Act, to the extent it requires the federal government to discriminate against same sex couples legally married in their states, is unconstitutional. But the brief itself is so much more than just that. It is a stirring documentation of discrimination, and a devastating rebuke of justifications used to make gays and lesbians second-class citizens.

In the brief (see the end of this post for the full brief), the DOJ asks the court to declare Section 3 of DOMA (i.e. the section that forces discrimination against legally married couples) unconstitutional under what is known as the "heightened scrutiny" standard. In legalese the "heightened scrutiny" test, a demonstration of the following is needed: (1) The group has suffered a history of discrimination, (2) The group is defined by "obvious, immutable or distinguishing characteristics," (3) The group is a minority and holds little political power, (4) The characteristics distinguishing the group has little to do with legitimate government objectives or an individual's "ability to perform or contribute to society."

Items 2 and 3 and prima facie justified. Part 2 is also evidenced by support from the scientific and medical communities that homosexuality is as immutable as heterosexuality. To see that as a group, LGBT Americans tend to have little political power, one only has to look at the history of discriminatory legislation and ballot initiatives, including DOMA itself, notes the DOJ brief.

But the Department of Justice not only contends that based upon these standards, gays and lesbians are a group deserving heightened scrutiny but does so by methodically documenting the history of discrimination and bigotry in this country and systematically dismantling any and all culture warrior excuses to discriminate. So, let's look at how it does so.

A Stirring Documentation of the History of Discrimination

The brief filed by the DOJ takes pain to list, one after another, instances and environments of discrimination that gay and lesbian Americans have faced and continue to face in our own country - from the federal government to the states, from the public sector to private sector, from legal discrimination to social stigma.
Discrimination against gay and lesbian individuals has a long history in this country... 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, have "demean[ed] the existence" of gay and lesbian people" by making their private sexual conduct a crime." Lawrence, 539 U.S. at 578. In addition to the discrimination reflected in DOMA itself... the federal government, state and local governments, and private parties all have contributed to this long history of discrimination.
The brief then goes on to painstakingly document instances of these discriminatory practices. In italic are my comments rather than the summary of the brief, if placed within the bullet points.

Discrimination by the federal government:
  • For years (until civil services administration adopted nondiscrimination policy in federal hiring in 1975), the federal government barred gays and lesbians from federal jobs based on sexual orientation. They even issued reports titled "Employment of Homosexuals and Other Sex Perverts in Government" (1950).

  • Eisenhower's Executive Order 10450 officially added "sexual perversion" as a ground for investigation and dismissal from federal jobs, and since homosexuality was included in that definition, it had he effect of requiring the termination of all gay people from federal employment.

  • The government, under EO 10450 engaged in a pervasive purge, forcing employees to go through polygraphs tests and "interrogating every potential male applicant to discover if they had any effeminate tendencies or mannerisms."

  • In order to identify gay employees, the federal government summoned data from local law enforcement on morals charges (regardless of whether there were convictions), gay bars, lists of places frequented by gays, and press articles in and on the underground gay world.

  • The Postal Service (USPS) aided the FBI by establishing a "watch list on the recipients of physique magazines, subscrib[ing] to pen pal clubs, and initiat[ing] correspondence with men whom [it] believed to be homosexual.

    Heh, and you thought "warrantless wiretapping" was only a recent concept.

  • Immigration policy: For years on end, the US categorically barred gay and lesbian non-citizens from entering the United states, as "mentally defective" or sexually deviant.
Although the DOJ brief did not include it in this section specifically, as I have noted above, the DOJ did note that DOMA itself is a discriminatory policy by the federal government.

Discrimination by state and local governments:
  • "By the 1950s, many state and local governments had banned gay and lesbian employees, as well as "employees of state funded schools and colleges and private individuals in professions requiring state licenses." "

    Read: no gay state employees, no gay teachers, and no gay doctors, lawyers, nurses, or even liquor store owners.

  • Anti-sodomy laws were often used to discriminate in state employment discrimination, intimating that anyone who is suspected to be gay is a criminal because of laws criminalizing sodomy.

  • States and localities denied child custody and visitation rights to gay and lesbian parents (or those rumored to be gay or lesbian) as recently as 2002, with courts openly declaring things like "homosexual conduct is... abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God [and] an inherent evil against which children must be protected." (NC, 1998)

    So glad the courts are thinking of the children by denying them contact with their parents. So glad.

  • Liquor licensing laws were used to harass and shut down establishments that gays and lesbians used.

  • Police used laws against lewdness, vagrancy and disorderly conduct to harass and intimidate gays and lesbians, especially when they dared to - gasp! - congregate in public.

  • Efforts to combat discrimination at local and state levels have consistently lead to backlash, "as evidenced by the long history of successful state and local initiatives repealing laws that protected gays and lesbians from discrimination." Proposition 8, for example. In fact, the DOJ brief notes, that a mere two months ago in May 2011, the Tennessee legislature enacted a law invalidating all existing local protections for LGBT Tennesseans and stripping counties of any further ability to pass such laws.
Discrimination by private parties:
  • Employment discrimination: Not only did private employers model their hiring policies after that of the federal government, resulting in private discrimination, the federal government shared with private employers its "blacklist" of homosexuals and suspected homosexuals, thereby blacklisting them for private employment as well.

  • LGBT Americans continue to be one of the most frequent victims of hate crimes. According to FBI statistics in 2007, hate crimes based on sexual orientation are the third highest frequent hate crimes, and account for a sixth of all reported hate crimes in the United States.
I could add a myriad number of factors on here: housing discrimination, domestic violence based on a child's real or perceived sexual orientation or gender identity, and social and familial rejection.

Having thus delivered a stunning recalling of the history of discrimination and bigotry, the DOJ brief then presents its direct and uncompromising case against the talking points often used to justify discrimination, declaring "sexual orientation bears no relation to legitimate policy objectives or ability to perform or contribute to society."

A Devastating Rebuke of Culture Warrior Justifications of Bigotry

Now, the religious conservatives aren't going to like this very much, but the DOJ actually thinks evidence and science and stuff has to be taken into account. They note that scientific and medical organizations have completely decimated the claim that homosexuality is somehow inherently inferior or an illness. But then they get to the meat of the matter, quoting President Obama as he signed the repeal of Don't Ask, Don't Tell. The President:
Sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed... There will never be a full accounting of the heroism demonstrated by gay Americans in service to this country; their service has been obscured in history. It's been lost to prejudices that have waned in our own lifetimes. But at every turn, every crossroads in our past, we know gay Americans fought just as hard, gave just as much to protect this nation and the ideals for which it stands.
Yes, this is quoted in DOJ's brief. The brief notes strongly that personal objections to homosexuality, on whatever grounds and however strong, cannot by themselves form a basis for prejudice and discrimination in law, and that the Supreme Court has recognized as much. As the brief quotes, the Supreme Court held in Lawrence v. Texas "The fact that a governing majority in a State has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice."

The brief by the DOJ goes on to tell the court that section 3 of DOMA neither can justify the discrimination, nor even serve the purposes used to legitimize the discrimination. This part of it is pure beauty.
First, legislative history demonstrates that the statute was motivated in significant part by animus towards gays and lesbians and their intimate and family relationships. Among the interests expressly identified by Congress in enacting DOMA was "the government's interest in defending traditional notions of morality... [and] also [to] explicitly state an interest to... "promote heterosexuality" and discourage homosexuality.
This is the observation that makes not just Section 3 of DOMA but all of DOMA prima facie unconstitutional under the heightened scrutiny standard. Once again, as SCOTUS has recognized time and again, phobia justified by moral or religious dogma is not a legitimate state interest to strip individuals of rights otherwise available to all. The DOJ brief calls this "the kind of animus and stereotype-based thinking that the Equal Protection clause was designed to guard against." This is rather significant. One could argue that the DOJ, in this argument, is not merely arguing against Section 3 of DOMA, it's arguing for extending marriage rights to all. "[R]eference to tradition, no matter how long established, cannot by itself justify a discriminatory law against equal protection principles." Boom.

The brief then takes on the age-old, stupid, and non-sequitur argument that Ohh, it is all about the children! Ohh, who will think of the children??
First, there is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law 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 policies opposing restrictions on lesbian and gay parenting based on their conclusions, supported by numerous studies, that children raised by gay and lesbian parents  are as likely to be well-adjusted as children raised by heterosexual parents.
Yes, us equality advocates have been making this case for the longest time, but did anyone ever think the time would come when the American's people's representative to the courts, the Department of Justice, would make that case in a legal brief? Well, they just did!

Oh, and then there is this kicker:
Second, there is no evidence in the legislative record that denying federal benefits to same-sex couples legally married under state law operates in any way to encourage responsible child-rearing, whether by opposite-sex or same-sex couples, and it is hard to imagine what such evidence would look like. [...]

Finally, as to "responsible procreation," even assuming an important governmental interest in providing benefits only to couples who procreate, Section 3 is not sufficiently tailored to that interest to survive heightened scrutiny. Many state-recognized same-sex marriages involve families with children; many opposite-sex marriages do not. And ability to procreate has never been a requirement of marriage or of eligibility for federal marriage benefits; [...]
I don't think I need to add anything to this. I am not going to mess with perfection.

But the DOJ doesn't simply leave it at making the Congressional intent on DOMA look like asshattery. They go on to make it look completely dumb even by the goals DOMA itseld describes.
In addition to expressing bare hostility to gay and lesbian people and their relationships, in enacting Section 3, the House Report articulated an interest in "defending and nurturing the institution of traditional, heterosexual marriage." [...] Section 3 of DOMA has no effect on recognition of the same-sex marriages Congress viewed as threatening "traditional" marriage; it does not purport to defend "traditional, heterosexual marriage" by preventing same-sex marriages or by denying legal recognition to such marriages. Instead, Section 3 denies benefits to couples who are already legally married in their own states, on the basis of their sexual orientation and not their marital status.
Oops. My strong suspicion is that Congress knew that it couldn't define for the states what marriage is, what with the 10th amendment and all, so necessarily they had to define it in terms of benefits based on orientation and not marital status, which is granted by the states! Hello, states rights!
The same is true of Congress' interest in "promoting responsible procreation and child-rearing," [...] Again, even assuming that Congress legislated on the basis of an independent and animus-free interest in promoting responsible procreation and child-reading, that interest is not materially advanced by Section 3 of DOMA.
Oh, snap! Wait, was that too gay?

As I said at the beginning, this brief is a very well-written and smart brief that completely takes the wind out from under the wings of bigotry and discrimination. It argues (a) You can't simply say "tradition" and justify discrimination, and (b) the things Congress said it wanted to promote by DOMA are not actually promoted by DOMA! Both of these things serve to show bigotry for what it is: an irrational fear and the tendency to punish people simply because they are different. It is that lethal combination that might just deal to DOMA its much-deserved death nail.

A personal note:

As a gay American, this brief means so much to me. I want to personally thank Attorney General Holder, the legal team at the Department of Justice that drafted this memo, and above all, President Obama for his leadership on this issue. Thank you for standing up for equal justice under law, thank you for upholding the Constitution, and thank you for keeping your campaign promise to fight DOMA, Mr. President. I have said it before, and I will say it again: the election of President Obama was the most important thing to happen to the gay rights movement since Harvey Milk. This is proof positive of that.

=========== FULL DOJ BRIEF FOLLOWS ===============
DOJ Brief: DOMA is Unconstitutional

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