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"United States v. Windsor" lawsuit attempts to have federal
DOMA ruled unconstitutional in the U.S. Supreme Court

2013-MAR: Former President Clinton (D) urges
Supreme court to declare DOMA unconstitutional.
Supreme court hears oral arguments in DOMA case.

Sponsored link.

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The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States

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This topic is continued from the previous essay

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2013-MAR-07: Bill Clinton wants Supreme Court to declare DOMA unconstitutional:

Former president Clinton signed the DOMA bill into law on 1996-SEP-21. Of the 536 members of Congress at the time, only 81 voted against the bill. Clinton wrote an powerful and eloquent op-ed piece in the Washington Post saying:

"On March 27, DOMA will come before the Supreme Court and the justices must 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 our Constitution. ..."

"Among other things, ... [legally married same-sex] couples cannot file their taxes jointly, take unpaid leave to care for a sick or injured spouse or receive equal family health and pension benefits as federal civilian employees.  Yet they pay taxes, contribute to their communities and, like all couples, aspire to live in committed, loving relationships, recognized and respected by our laws. ..."

"We have yet to celebrate the centennial of the 19th Amendment, but a society that denied women the vote would seem to us now not unusual or old-fashioned, but alien. I believe that in 2013 DOMA and opposition to marriage equality are vestiges of just such an unfamiliar society. ..."

"We understand that, while our laws may at times lag behind our best natures, in the end they catch up to our core values. ..."

"I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory.  It should be overturned." 1

Jim Stennett added a readers' comment to the article in the Seattle PI:

"All of you vilifying Bill Clinton for signing DOMA are conveniently forgetting the political context of the time. DOMA was nothing more than a political stunt brought to you by the then fully Republican-controlled House and Senate. Think Newt Gingrich, Tom DeLay, John Boehner.

DOMA was the Republican's plot to paint Bill Clinton into a political corner. They passed the law knowing they could probably sustain a veto, and dared him to veto it. If he did, they would immediately use his veto against him, to inflame voters about his daring to support gay rights.

And it would've worked. There was no widespread public support for same-sex marriage at the time. (Look at how heated the opposition to it still is today). They were also threatening a Constitutional Amendment to prohibit same-sex marriage, and they no doubt would've pulled it off too.

Clinton signed DOMA to avoid the Constitutional Amendment, which would've been even worse. And he refused to let them paint him into a corner as part of a sleazy political ploy. You're blaming Clinton for it? Are you forgetting it was cooked up and passed by a Republican-dominated House and Senate? Signing it was not a good option, but the alternatives would've been worse. And they would've tried to over-ride his veto to embarrass him anyway. Are all of you too young to remember this? Or maybe you're too senile to remember it? Or maybe you were just too clueless at the time to know what was going on? 1

A few months before the date when President Clinton signed the DOMA bill, CR Survey Research Group of Media, PA. conducted a national poll on same-sex marriage. They found 57% of adults were opposed, and only 30% in favor. If Clinton had vetoed DOMA, the negative consequences would have been severe.

Another reader of the op-ed piece, Monica Rivera, wrote:

"I believe we ought spend our energy and efforts focused in today.

Today we are seeing more support toward equality and more people changing their minds toward a compassionate and understanding thinking. This is great. The fact that Bill Clinton, Patty Murray and other relevant people are changing their minds in this matter is a sign that we are moving in the right direction.

It does not matter anymore who voted for what so many years ago. What really matters is where we are today and how this is going to shape the lives of our future generations.

I, for one, believe in equality for all and it makes me proud to see how the thinking of this great nation is evolving day by day. It is encouraging to see how the younger generations are teaching a lesson to the older ones in how to see past external differences and focus in what really matters. People grow and change, it is ok. Let's celebrate the positive change and stop pointing fingers at the mistakes of the past." 1

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2013-MAR-27: U.S. Supreme Court hears oral arguments in United States v. Windsor:

The Court spent part of the previous day, MAR-26, hearing oral arguments in the California Proposition 8 case.

On 2013-MAR-27, The U.S. Supreme Court heard oral arguments on the U.S. v. Windsor case which challenges the constitutionality of the federal DOMA act. Section 3 of that act prohibits the federal government from making available any of its 1,138 programs to legally married couples if both spouses are of the same gender. The government is required to consider loving, committed same-sex couples as "legal strangers" -- as mere roommates. The approximately one quarter of a million lesbians, gays and bisexuals who are married to same-sex spouses suffer major hardships as a result of DOMA. One DOMA victim is the plaintiff in this case, Edith Windsor, 83. She inherited a house from her spouse and had to pay over a third of a million dollars in inheritance taxes. If she had married a man, there would have been no such taxes.

C-Span has provided the following 1 hour and 56 minute audio recording of the oral arguments presented before the U.S. Supreme Court. There is a 15 second delay at the start of the recording. Only an audio recording is available because the U.S. Supreme Court does not yet allow audio or video cameras in the courtroom:

2

The official transcript of the trial is also available online in written form. 3

One major attack by lawayers arguing against DOMA suggested that the law violated the equal-protection guarantee of the Fifth Amendment to the U.S. Constitution. Solicitor General Donald Verrilli argued that DOMA is unconstitutional on the basis of a "intermediate scrutiny" review. This type of review applies to groups who meet three requirements:

  • They have been traditionally discriminated against. There is plenty of evidence that LGBTs have been victims of discrimination for centuries.

  • They are defined by an unchangeable characteristic -- in this case by sexual orientation. There is a near consensus among religious liberals, therapists, psychologists, psychiatrists, human sexuality researchers, etc. that an adult's sexual orientation is unchangable. However, most religious conservatives believe and teach that sexual orientation can be changed through prayer and reparative therapy.

  • They cannot achieve relief through the legislative route. LGBT-positive groups have been trying for years to have DOMA repealed without success.

Another attack was based on state's rights: that the definition of who is eligible to marry is a responsibility of the individual state and not of the federal government. 4 DOMA, in essence, unconstitutionally overrules decisions by those states that allow same-sex couples to marry.

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2013-MAR-26: Bill O'Reilly on Fox News criticizes same-sex marriage critics:

O'Reilly, a conservative Fox News host, said:

"The compelling argument is on the side of homosexuals. That's where the compelling argument is: 'We're Americans. We just want to be treated like everybody else.' That's a compelling argument, and to deny that, you have got to have a very strong argument on the other side. The argument on the other side hasn't been able to do anything but thump the Bible." 5

Actually, in addition to basing their opposition to SSM on their interpretation of six or so "clobber" passages from the Bible, religious conservatives have also argued that same-sex marriage is undesirable on its own merits.

  • In the early years, they argued that same-sex marriage violated the basic funcion of marriage which is to procreate. There was once an embarrasing development in a senior Canadian court when a government lawyer argued against SSM on the basis that gays and lesbians cannot have children. Then the lawyer representing the plaintiffs stood up. She was a lesbian and about 8 months pregnant, presumably through artificial insemination -- the same medical procedure that some infertile opposite-sex couples use. The government lost the case.

  • More recently, conservatives have based their argument on the belief that a child needs both a mother and a father, preferably parents who are genetically related to the child. They call this "responsible parenting." This presumably means that a same-sex couple as well as opposite-sex couples who adopt children are engaged in "irresponsible parenting."

    Their argument is weakened when one considers the fate of families led by same-sex couples in those 31 states that have not yet legalized same-sex marriage or civil unions. The state governments treat their loving, committed same-sex couples as "legal strangers" -- only as roommates. One is forced to ask: what would be the better environment for these couples to raise children:
    • Where they are treated as legal strangers without status, benefits or protections, or

    • Where they are allowed to marry and receive all of the status, benefits and protections of marriage?

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Discussion of the oral arguments in U.S. v. Windsor continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Bill Clinton, "Bill Clinton on DOMA: I signed it, now overturn it," SeattlePI, 2013-MAR-07, at: http://blog.seattlepi.com/
  2. "Supreme Court Hears Oral Argument on Same-Sex Marriage," C-Span, 2013-MAR-27, at: http://www.c-span.org/
  3. Official transcript of United States v. Edith Windsor, #12-307 2013-MAR-27, is at: http://www.scribd.com/1
  4. "SCOTUS: DOMA's fate in Kennedy's hands," Breitbart, 2013-MAR-27, at: http://www.breitbart.com/
  5. Ashley Killough, "O'Reilly blasts same-sex marriage critics, CNN, 2013-MAR-27, at: http://politicalticker.blogs.cnn.com/

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconstitutional > Windsor v. U.S. > here

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally posted: 2013-MAR-12
Latest update: 2013-APR-02
Compiler: B.A. Robinson

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