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March 1, 2013

Highlights From Amicus Briefs Opposing DOMA

Over 40 friend-of-the-court briefs were filed today in the U.S. Supreme Court by parties including Members of Congress, the NAACP, Labor, Military Leaders, Service Members and Families, Former Cabinet Members, Child Welfare Experts and Faith Leaders, all asking the Court to overturn Section 3 of the federal Defense of Marriage Act.

Earlier this week, 278 Businesses and Organizations Representing Employers also filed a brief calling for the Court to strike DOMA.

The briefs were filed in Windsor v. United States, brought by the ACLU, and can all be found at www.glad.org/doma/documents. Briefs were also filed in the California Prop 8 case, which the Court will consider this month as well.  For information on the briefs in that case, visit www.afer.org.  More information on both cases can also be found at www.scotusblog.com.

Highlights from the Windsor briefs include:

Members of Congress

DOMA does not serve, but instead undermines, the federal laws and programs that it affects.

DOMA is also unlike most other Acts of Congress in another critical respect: A clearly stated purpose for its enactment was to express moral disapproval of a disfavored minority group.

[T]he evidence is clear… that DOMA harms children raised in the households of married same-sex couples.

Before DOMA, Congress never found it necessary to override differences in state marriage rules.

NAACP Legal Defense and Education Fund

By virtually any measure, gays and lesbians have been subjected to systemic discrimination throughout our nation’s history, resulting in their ongoing subordination as a class.  And DOMA’s express purpose is to create and perpetuate a hierarchy that dis-advantages gay people based on their sexual orientation.

By categorically excluding gay people from “more than a thousand” federal protections and obligations that come with marriage, DOMA treats gays and lesbians as legally and socially inferior.

DOMA’s denial of marital benefits under federal law to gays and lesbians subordinates them within the institution of marriage. 

Labor

The Defense of Marriage Act (DOMA),  by intention and design, ensures that workers with same-sex spouses earn less money, pay higher taxes on their wages and benefits, and have available to them fewer valuable benefits than their counterparts with different-sex spouses.

DOMA deprives married gay and lesbian working people and their children of significant benefits associated with employment. Because most Americans obtain health insurance through their own employer or through their spouse’s employer, DOMA prevents or substantially restricts access to spousal healthcare benefits. DOMA also denies married gay and lesbian couples important protections and benefits provided to other married couples when one spouse suffers a workplace injury or illness. DOMA also impinges on the ability of married same-sex couples to plan and provide for retirement. Finally, DOMA unfairly eliminates opportunities for married gay and lesbian couples to work and remain lawfully in the United States.

DOMA forecloses the option of immigration through family sponsorship for married bi-national gay and lesbian couples.

Retired Military Leaders

Based on their experience leading, overseeing and analyzing the military, amici are confident that discriminating against certain servicemembers and their families in this manner is contrary to the military’s best interests and therefore undermines national security.

DOMA infringes on the military’s core value of equality and requires that the military violate its most sacred promises to its servicemembers.

DOMA unquestionably stands as a substantial impediment to the military’s post-DADT recruiting and retention initiatives. 

Because DOMA injures morale, readiness, cohesion and performance, there is no constitutional justification, let alone military rationale, that weighs in favor of permitting these threats to today’s military and our national security to continue.

Service Members and Families

In the military context, the denial of equal benefits for equal service and equal sacrifice is more than a fairness issue.  The military consistently has emphasized that providing benefits to military spouses improves morale and is critical to national security.  These benefits address an important source of worry for service members, allowing them to focus on the tasks at hand.  A Marine who is ordered to kick down a door or to take a hill in the midst of incoming gunfire should not have to worry about what would happen to his or her spouse if the Marine were to die in battle.  The military knows this and has explicitly made that point to Congress in seeking spousal benefits in the past. 

“The death of Staff Sergeant Donna Johnson illustrates the real-world impact of DOMA.  While on her third deployment in Afghanistan, Sgt. Johnson was killed in October 2012, along with two other married soldiers, when a Taliban suicide bomber drove a motorcycle packed with explosives into their patrol.  Because of DOMA, the military did not notify Sgt. Johnson’s wife of her death, but instead notified Sgt. Johnson’s mother.  Sgt. Johnson’s wedding ring was not returned to her wife, but was given to her mother along with her personal effects.  The flag that draped Sgt. Johnson’s coffin was handed to her mother, not to her spouse.  And her spouse was denied the spousal death benefits and support services that opposite-sex spouses of fallen soldiers are entitled to receive, including the opposite-sex spouses of the other soldiers killed in the same attack.” 

“[The President and Secretary of Defense have made clear there is no military interest served by discriminating against the families of gay and lesbian service members, and they have sought to equalize benefits where possible.” 

“Gay and lesbian service members often report to OutServe-SLDN that they are considering leaving the military for the private sector to obtain spousal benefits, particularly health care.  In contrast to the military, a substantial and increasing number of private employers provide benefits to same-sex spouses and domestic partners.” 

Faith Leaders

Eliminating discrimination in civil marriage will not impinge upon religious doctrine or practice. 

More than three thousand clergy from numerous faiths have endorsed an open letter by the Religious Institute, Inc. calling for marriage equality.

Eliminating DOMA’s unconstitutional distinction between lawfully married couples solely based on sexual orientation would not change, mandate, control, or interfere with any other party’s religious practices. The religious freedoms embodied in the Constitution guarantee that diverse religious traditions and beliefs, including the sole right to define who can marry religiously, will flourish regardless of changes in civil marriage laws. 

While amici respect all fellow faiths, including those that embrace different religious views on marriage, it is constitutionally impermissible to impose religious views through civil law to curtail the right of same-sex couples to civilly marry.

American Sociological Association (Child Welfare)

The social science consensus is both conclusive and clear: children fare just as well when they are raised by same-sex parents as when they are raised by opposite-sex parents.  This consensus holds true across a wide range of child outcome indicators and is supported by numerous nationally representative studies.

Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and socioeconomic stability.  Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

[S]tudies reveal that children raised by same-sex parents fare just as well as children raised by opposite-sex couples across a wide spectrum of child-wellbeing measures: academic performance, cognitive development, social development, psychological health, early sexual activity, and substance abuse.

[T]he studies relied on by BLAG, the Proposition 8 Proponents, and their amici examine child outcomes within the context of opposite-sex relationships, and do not address the impact of same-sex parents on child wellbeing.  These studies do not undermine the social science consensus, supported by the most reliable studies available, that children raised by same-sex parents fare just as well as children raised by opposite-sex parents across a broad spectrum of indicators.