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House GOP to Supreme Court: Gays too powerful to warrant judicial protection

DOMA brief asserts gays, lesbians have not faced similar levels of discrimination as other minorities
Wednesday, January 23, 2013

Republican members of the U.S. House leadership on Tuesday told the U.S. Supreme Court it should uphold the Defense of Marriage Act (DOMA) as constitutional, arguing that gays and lesbians are a powerful interest group, and do not warrant “judicial intervention.”

In a 60-page brief filed Tuesday, Paul Clement — a former United States solicitor general and current partner at the Washington law firm Bancroft PLLC — now representing the GOP-led Bipartisan Legal Advisory Group (BLAG) of the U.S. House, argued that the federal government has the same power as state governments do to define marriage.

The brief asserts that DOMA does not attempt to exclude anyone from government benefits, and seeks only to define marriage for purposes of federal laws and programs.

The brief also attacked the Obama administration’s February 2011 decision to stop defending the constitutionality of DOMA, and argued that gays and lesbians have not faced similar levels of discrimination as other minorities, and “demonstrates the remarkable political clout of the same-sex marriage movement.”

“In short, 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.”

The brief was filed in the federal challenge to DOMA, United States v. Windsor — the appellate to Windsor v. United States — in which Edith Windsor is challenging the federal government’s refusal to recognize her marriage to Thea Spyer when it comes to estate taxes on her deceased spouse’s estate.

Last year, a federal judge in New York ruled that Section 3 of DOMA is unconstitutional and violates the Fifth Amendment.

Section 3 defines marriage as “a legal union between one man and one woman as husband and wife” and spouse as “a person of the opposite sex who is a husband or a wife,” thus providing unequal protection under the law.

Although the Court has told the House leaders to defend their legal right to be in federal court to defend DOMA, the brief did not deal with that question — a separate brief on that point is due from BLAG on February 22, reported SCOTUSBlog.

Earlier this month, GOP leadership privately raised the spending cap to defend DOMA to $3 million. The contract with Clement has been adjusted three times since its original $500,000 cap.

Also on Tuesday, proponents of California’s Proposition 8 — the 2008 voter-approved ban on same-sex marriage — urged the Supreme Court to preserve that state’s definition of marriage as between one man and one woman, the first of many arguments the high court will hear this year on the issue of marriage equality.

The high court will hear arguments March 26 in the Proposition 8 case, and the following day in the DOMA challenge.

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73 more reader comments:

  1. Where do these crackpots get the nerve?

    Posted on Wednesday, January 23, 2013 at 12:33pm
  2. Pardon me while I pause to clean up the coffee that just sprayed all over my keyboard…

    Posted on Wednesday, January 23, 2013 at 12:33pm
  3. Smh …

    Posted on Wednesday, January 23, 2013 at 12:33pm
  4. Oh, so now they think we’re the gay mafia?

    Posted on Wednesday, January 23, 2013 at 12:34pm
  5. Headcanon: Gays are supernatural beings with power far beyond what we can realize.

    Posted on Wednesday, January 23, 2013 at 12:35pm
  6. Too powerful? The logical fallacy here is that if we were overtly powerful, we wouldn’t have to fight for equal rights.

    Posted on Wednesday, January 23, 2013 at 12:36pm
  7. We just ooze the power of The Force and The Empire is jealous… Give me a break!!!

    Posted on Wednesday, January 23, 2013 at 12:37pm
  8. Next, The World!!!

    Posted on Wednesday, January 23, 2013 at 12:38pm
  9. They are pissed because we are organized.

    Posted on Wednesday, January 23, 2013 at 12:38pm
  10. I am too OCD for all that. I shower the moment I ooze anything.

    Posted on Wednesday, January 23, 2013 at 12:38pm
  11. Fyi, don’t mess with OCD gays who can actually match their own ties..lol

    Posted on Wednesday, January 23, 2013 at 12:39pm
  12. I can’t breathe. Thank you Shiva Raye!

    Posted on Wednesday, January 23, 2013 at 12:39pm
  13. Lets really form the gay mafia. Maybe we will even get a t. v. show.

    Posted on Wednesday, January 23, 2013 at 12:40pm
  14. But aren’t these the same guys who argue that banks are also too powerful NOT to have judical protection???

    Posted on Wednesday, January 23, 2013 at 12:41pm
  15. We haven’t had as much discrimination as other minorities? Have they never heard of Matthew Shepard? Never seen the tons of other kids on the news that were hurt or killed because that discrimination? Or the tons of other kids who kill themselves everyday because of constant bullying at school? These people are morons.

    Posted on Wednesday, January 23, 2013 at 12:41pm
  16. Gays rule the world? Wow, that’s news to me.

    Posted on Wednesday, January 23, 2013 at 12:42pm
  17. Not to mention the men and women who go and serve and fight for our country and everyone’s freedom only to come back and be kicked out or denied those same freedoms they fought for??

    Posted on Wednesday, January 23, 2013 at 12:43pm
  18. And here lies the mockery and the obstruction of justice. Are we so powerful that we must fight tooth and nail just to be recognized for equal rights? Does corruption know no depths? This is an outrage!

    Posted on Wednesday, January 23, 2013 at 12:43pm
  19. They’re pathetic!

    Posted on Wednesday, January 23, 2013 at 12:43pm
  20. Wtf?! Who are they to decide how “fast moving” it is. Is gay marriage legal? No? Then it’s not fast enough.

    Posted on Wednesday, January 23, 2013 at 12:44pm
  21. funny if the fed government doesn’t recognize SSM, then to me we aren’t equal, so his arguments don’t hold up.

    Posted on Wednesday, January 23, 2013 at 12:47pm
  22. Here we go again with that racist anti-working class argument about the lgbt world. It just ain’t so… a myth that lgbt folks are white upper middle class men who have it made. the spread that myth to divide us. We are part of every class, demographic, and race in the world. However there is one point that is true. We fight hard… and fight we will no matter what the Supreme Court says or the Republicans who would like to see us go away.

    Posted on Wednesday, January 23, 2013 at 12:48pm
  23. Now, now, lets all calm down. We can discuss this at the next World domination meeting and brunch. Until then see you at the Oscar Parties!

    Posted on Wednesday, January 23, 2013 at 12:49pm
  24. Ive got the power! :)

    Posted on Wednesday, January 23, 2013 at 12:56pm
  25. the entire government is too powerful to really need jurisdiction protection to be honest.

    Posted on Wednesday, January 23, 2013 at 12:57pm
  26. wow

    Posted on Wednesday, January 23, 2013 at 12:57pm
  27. “Have not faced the same level of discrimination?” Tell that to the families who have had their family members killed in hate crimes; tell that to the sons and daughters and others who have been kicked out of their homes by their own parents; tell that to loving couples who can’t see each other in hospitals because they aren’t legally allowed to, even when they’ve spent decades of their lives together.
    This kind of stuff pisses me off.

    Posted on Wednesday, January 23, 2013 at 1:03pm
  28. Seriously…my mind is hurting reading these ridiculous statements

    Posted on Wednesday, January 23, 2013 at 1:04pm
  29. please explain what power we have? please, no really, please explain this to me. I really want to know.

    Posted on Wednesday, January 23, 2013 at 1:05pm
  30. Justice Kennedy will spear head same-sex marriage nationwide in June. Who wouldn’t want that legacy, to be remembered as the one who brought the last Civil Rights struggle to an end?

    Posted on Wednesday, January 23, 2013 at 1:06pm
  31. Well Pup, – two examples of our power – hem lines and caramelized onions.

    Posted on Wednesday, January 23, 2013 at 1:08pm
  32. Haven’t mastered the carameized onions….

    Posted on Wednesday, January 23, 2013 at 1:14pm
  33. Just another form of oppression. Blah blah blah…….

    Posted on Wednesday, January 23, 2013 at 1:16pm
  34. If we had that kind of power, wouldn’t be debating the issue now – it never would have been raised and we would all be married to our respective spouses.

    Posted on Wednesday, January 23, 2013 at 1:16pm
  35. We are powerful ie we are taking our rights and protection under the government. Just like our black and jewish bros and sisters. Also fuck you, we are not Sarah Palin, we will not be tricked into giving up our human dignity.

    Posted on Wednesday, January 23, 2013 at 1:19pm
  36. Did you hear that gays?
    We’re SOOOOOOOOOOOOOOOO powerful that we can’t even secure basic human rights for ourselves!

    Posted on Wednesday, January 23, 2013 at 1:32pm
  37. Idiots. Just plain idiots.

    Posted on Wednesday, January 23, 2013 at 1:34pm
  38. Lol, their LAST STAND:-)

    Posted on Wednesday, January 23, 2013 at 1:51pm
  39. Said the same thing when African Americans demanded equal rights…

    Posted on Wednesday, January 23, 2013 at 2:05pm
  40. Wow the GOP has officially lost their minds in saying we’re too powerful of a group to get judicial protection that is so out of the ballpark but what is true is we are not powerful and we do need judicial protection.

    Posted on Wednesday, January 23, 2013 at 2:16pm
  41. Seriously!!? ¿

    Posted on Wednesday, January 23, 2013 at 2:19pm
  42. not sure if this has already been posted…but very disturbing!! http://www.nytimes.com/2013/01/23/opinion/gospel-of-intolerance.html?hp&_r=2&

    Posted on Wednesday, January 23, 2013 at 2:29pm
  43. BS!

    Posted on Wednesday, January 23, 2013 at 2:31pm
  44. What utter CRAP!

    Posted on Wednesday, January 23, 2013 at 3:01pm
  45. and Log Cabin will say thank you

    Posted on Wednesday, January 23, 2013 at 4:02pm
  46. So they are like the mutants in the Marvel Universe?

    Posted on Wednesday, January 23, 2013 at 9:42pm
  47. Ugh.

    Posted on Wednesday, January 23, 2013 at 9:43pm
  48. Really.

    Posted on Wednesday, January 23, 2013 at 9:44pm
  49. Hey guys remember when the Irish were considered a minority in New York and Boston in the 1900′s?

    Posted on Wednesday, January 23, 2013 at 9:44pm
  50. Is that from the The Onion?

    Posted on Wednesday, January 23, 2013 at 9:45pm
  51. These people STILL have no understanding!

    Posted on Wednesday, January 23, 2013 at 9:46pm
  52. Sure, with 30 State Constitutions enshrining deliberate discrimination against us, we have political power. PHHHHHHHT.

    Posted on Wednesday, January 23, 2013 at 9:47pm
  53. So being murdered isn’t bad enough? Being fired isn’t bad enough?

    Posted on Wednesday, January 23, 2013 at 9:48pm
  54. umm… What?!? lol

    Posted on Wednesday, January 23, 2013 at 9:48pm
  55. Just shows you how homophobic, uninformed, and living in the past these people are.

    Posted on Wednesday, January 23, 2013 at 9:49pm
  56. When is it enough systemic discrimination for it to count? lol

    Posted on Wednesday, January 23, 2013 at 9:50pm
  57. I believe DOMA needs to be overturned. I also believe laws that allow any American to avoid paying nearly 300gs in taxes also need to be overturned.

    Posted on Wednesday, January 23, 2013 at 9:53pm
  58. not sure what taxes have to do with marriage equality…

    Posted on Wednesday, January 23, 2013 at 9:57pm
  59. What planet is the GOP living on that they don’t know what the gay community is forced to endure

    Posted on Wednesday, January 23, 2013 at 9:58pm
  60. Sorry, but there’s been enough discrimination to declare an attack on someone because they’re gay as being a hate crime. What, exactly, is enough discrimination against us? Excuse me, House, could you possibly quantify that for the dumb homo over here?

    Posted on Wednesday, January 23, 2013 at 9:59pm
  61. Maybe they need to read a well researched report on discrimination for even just one segment of the LGBT Community… “Injustice at Every Turn” comes to mind.

    Posted on Wednesday, January 23, 2013 at 10:11pm
  62. I recently wrote a paper on same-sex rights, and ironically enough (and contradictory to what the DOMA apparently thinks), the opinion/acceptance of interracial marriages in the mid-20th century and same-sex marriages today correlate pretty evenly. They’re just trying to come up with reasons to continue discriminating against us; I don’t think they’re trying very hard to find stable evidence to prove their point.

    Posted on Wednesday, January 23, 2013 at 10:16pm
  63. everyone needs to read this and see Office of Speaker Boehner bashing 83-year-old widow Edie Windsor http://sblog.s3.amazonaws.com/wp-content/uploads/2013/01/BLAG-merits-brief-1-22-131.pdf

    Posted on Wednesday, January 23, 2013 at 10:20pm
  64. Why the fuck are scholar-level arguments still being given on this issue? It’s not rocket science to find out that LGBT are descriminated against by a law that serves to discriminate.

    Posted on Wednesday, January 23, 2013 at 10:31pm
  65. Sickening homophobics

    Posted on Wednesday, January 23, 2013 at 10:54pm
  66. BULLSHIT

    Posted on Wednesday, January 23, 2013 at 10:55pm
  67. ONE WORD AND CULT THAT DOES IT CHURCHES

    Posted on Wednesday, January 23, 2013 at 10:55pm
  68. This is fucking ridiculous. I hate this country.

    Posted on Wednesday, January 23, 2013 at 10:58pm
  69. Yes we are discriminated against! What fucking century are the republicans living in

    Posted on Wednesday, January 23, 2013 at 11:14pm
  70. I believe it is UNCONSTITUTIONAL for the Grossly Obnoxious Party to infringe on the judicial powers of the Supreme Court. It is not their business to try and manipulate decisions made by the Supreme Court. THIS IS WRONG!

    Posted on Wednesday, January 23, 2013 at 11:59pm
  71. If the Grossly Obnoxious Party does not believe Gays and Lesbians are discriminated against, let’s examine the following: If you are employed and GAY in 29 states, you can be fired; despite some progress, GAYS can marry in only 10 states; health benefits are not widespread in the Nation for GAYS, Hate Crimes against GAYS have run rampant for decades; Religions manage to discriminate and persecute against GAYS in the largest congregations; efforts by GAYS for equal opportunity in employment, housing, partnership rights, hospital visitations are often quelled because of discrimination.

    Posted on Thursday, January 24, 2013 at 12:12am
  72. Don’t know if you regularly read the comments or not but Indiana just filed the doma bill for our state… It is time for the fight for our rights in the state of Indiana !!!!

    Posted on Thursday, January 24, 2013 at 2:43am
  73. Oh no, not at all. It’s not like any gay people have been killed because they were gay, or fired because they were gay, or had their kids taken away because they were gay, or not allowed to get married because they were gay, like those other minorities. That just doesn’t happen.

    Posted on Thursday, January 24, 2013 at 12:02pm