“DOMA is a recipe for a violation of equal protection guaranteed by the U. S. Constitution: It targets a particularly disliked group, impacts important personal interests, and represents a one-time departure from the usual process of allocating federal rights and benefits.”

Os advogados e defensores gays e lésbicos (GLAD) e a Lambda Legal apresentaram hoje uma petição de amigo do tribunal em EUA v. Windsor urging the U.S. Supreme Court to affirm the decision by the U.S.Second Circuit Court of Appeals declaring Section 3 of the federal so-called Defense of Marriage Act (DOMA) unconstitutional.

“DOMA is a recipe for a violation of equal protection guaranteed by the U. S. Constitution: It targets a particularly disliked group, impacts important personal interests, and represents a one-time departure from the usual process of allocating federal rights and benefits,” said Susan Sommer, Lambda Legal Senior Counsel and Director of Constitutional Litigation.  “DOMA is a perfect storm with multiple elements all of which call for careful judicial review. Its passage was accompanied by unambiguous and overt statements of moral disapproval of gay people, indicating its very purpose was discriminatory. It is precisely the sort of statute that should fail rational basis scrutiny.  Indeed, it’s harder to imagine a clearer example.”  The brief argues that, although laws such as DOMA that discriminate based on sexual orientation should be subjected to heightened scrutiny – a more rigorous standard of constitutional review – DOMA does not even pass the less strict, rational basis standard. Drawing on the Supreme Court’s ruling in Romer v.Evans, Lambda Legal’s historic 1996 case, the brief argues that DOMA fails this less strict standard because it heaps upon married same-sex couples disadvantages that defy credible connection to any legitimate purpose.  DOMA amended more than 1,000 federal laws and regulations ranging from tax policy, federal employee benefits, rights under private pension plans and conflict-of-interest rules.

Mary L. Bonauto, GLAD’s Civil Rights Project Director, commented, “DOMA is akin to so many of the anti-gay laws still plaguing gay people in many States. In addition to showing why DOMA fails, the point of this brief is to demonstrate that under the most basic equal protection framework, anti-gay laws are indefensible.”

Windsor is one of multiple recent cases where federal courts have found Section 3 of DOMA unconstitutional.  Those cases include Lambda Legal’s Golinski v. U.S. Office of Personnel Managementin the Ninth Circuit and GLAD’s Gill et. al. v. Office of Personnel Management in the First Circuit and Pedersen v. Escritório de Gestão de Pessoal no Segundo Circuito.  EUA v. Windsor is also out of the Second Circuit and was brought by the ACLU and the law firm of Paul Weiss Rifkind Wharton & Garrison LLP.

In addition to the Lambda Legal/GLAD brief, over forty other friend-of-the-court briefs are being filed urging the Supreme Court to affirm the Second Circuit Court of Appeals ruling in Windsor, including one joined by 278 businesses and municipalities. In addition to Sommer and Bonauto, other lawyers on the brief include: Paul M. Smith, Luke C. Platzer and Melissa A. Cox of Jenner & Block LLP who teamed up with GLAD on its DOMA litigation; Jon W. Davidson, Tara L. Borelli, and Shelbi D. Day, of Lambda Legal; and Gary Buseck, Vickie L. Henry, and Janson Wu of GLAD.

Read the brief filed today here.

Information about Gill v. OPM is available aqui.

Information about Pedersen v. OPM is available aqui.

Information about Golinski v. OPM, Lambda Legal’s DOMA challenge, is available at www.lambdalegal.org

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. Estados Unidos, brought by the ACLU, and can all be found at www.gladlaw.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.

A broad bipartisan coalition of organizations filing briefs with the Supreme Court as “friends of the Court,” in support of the plaintiffs in the landmark cases challenging the so-called federal Defense of Marriage Act (DOMA) and California’s Proposition 8 held a joint press conference today. Briefs are being filed in the Proposition 8 case, Hollingsworth v. Perry, today, and in the DOMA case, Estados Unidos v. Windsor, on Friday.

Among the speakers at today’s press conference were Valerie Long of the SEIU, Kim Keenan of the NAACP, Congressman Patrick Murphy, Retired U.S. Navy Captain Joan Darrah, religious leaders and families.

“As a military veteran, there is no question that the Defense of Marriage Act, or DOMA, discriminates against certain legally married service members, veterans, and their families. The impacts of DOMA are real and this discriminatory law 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.” – Congressman Patrick Murphy.

“DOMA discriminates against same-sex legally married servicemembers, veterans, and their families. Not only does it discriminate but it also unquestionably stands at odds with the military’s core value of equality and has hampered progress the military has tried to make post-DADT.  By striking down DOMA, the military will be able to uphold its promises to its servicemembers.” – Captain Joan Darrah, US Navy (Ret).

“Working people are standing alongside millions of other Americans in this fight for marriage equality because we believe in fairness and equality and don’t think federal or state law should penalize people simply because of who they love. The Court should uphold the Court of Appeals rulings striking down DOMA and Proposition 8 and affirm the fundamental rights of all Americans to recognition of their families.”  – Valarie Long, Executive Vice President, SEIU.

“DOMA and other civil laws that purposefully infringe on the rights of gay people create and perpetuate a discriminatory societal division. By categorically excluding gay people from federal protections and obligations that come with civil marriage, DOMA intentionally segregates citizens on the basis of status. DOMA must be struck down because it denies Americans equal protection under the law based solely on sexual orientation.” – Kim Keenan, General Counsel, NAACP.

“My wife and I are devout Christians, and marriage means so much to us that when our son Lee came out as gay we wanted to make sure that his love was recognized the same as ours. Lee and his husband David are entitled to a marriage full of life, love and family – and we want that for all couples.” – Mike Neubecker, a PFLAG brief signer in support of the freedom to marry.

“Our position on same-sex marriage is derived from our religion that emphasizes equality and compassion. Our country is founded in equality and discriminating against same-sex couples runs in opposition to the core principals of our nation and my religion. We strive for equality and we urge that it be extended to all couples, regardless of sexual orientation.” – Sandy Sorensen, Director of Washington Office, Justice and Witness Ministries, United Church of Christ.

“I believe in the Christian principles of justice, compassion, inclusivity and, most importantly, love. All loving couples deserve to make a vow of lifetime commitment to one another and to have that marriage celebrated and protected.” – Rev. Scott Slater, Chief of Staff, Episcopal Diocese of Maryland.

Os advogados e defensores gays e lésbicos (GLAD) e a Lambda Legal apresentaram hoje uma petição de amigo do tribunal em Hollingsworth v. Perry instando a Suprema Corte dos EUA a confirmar a decisão histórica do Tribunal de Apelações do Nono Circuito dos EUA, declarando a Proposta 8 discriminatória da Califórnia inconstitucional.

“A Proposta 8 viola a ordem expressa da Cláusula de Proteção Igualitária federal”, disse Jon Davidson, Diretor Jurídico da Lambda Legal. “O que a Proposta 8 fez foi adicionar uma subseção à cláusula de proteção igualitária da Constituição da Califórnia, alterando-a para excluir especificamente lésbicas e gays da garantia de igualdade do estado em relação ao casamento. A Proposta 8 fez com que o estatuto da Califórnia protegesse todos, exceto gays, contra a desigualdade no casamento – protegendo até mesmo aqueles condenados por assassinar um cônjuge anterior. Na prática, a Proposta 8 transformou a cláusula de proteção igualitária do estado em uma cláusula que impõe proteção desigual.”

No resumo, GLAD e Lambda Legal argumentam que “a Proposta 8 exigia que o estado fornecesse a lésbicas e gays menos proteção contra a desigualdade do que a qualquer outra pessoa, o que literalmente viola o mandato da Cláusula de Proteção Igualitária federal”.

O resumo também argumenta que, embora leis como a Proposta 8, que discriminam com base na orientação sexual, devam ser submetidas a um escrutínio mais rigoroso – um padrão mais rigoroso de revisão constitucional – a Proposta 8 nem sequer passa pelo padrão menos rigoroso, de base racional. Isso ocorre, explica o resumo, porque a Califórnia reconheceu que casais do mesmo sexo estão em situação semelhante à de casais de sexos diferentes no que diz respeito aos propósitos do casamento e que relegar casais do mesmo sexo ao status inferior de uniões estáveis os estigmatiza e prejudica, assim como suas famílias. O resumo argumenta que, como a Proposta 8 não tinha outro propósito ou efeito além de marcar casais do mesmo sexo e seus relacionamentos como inferiores, ela viola a proteção federal igualitária, mesmo sob revisão de base racional.

“A capacidade de se comprometer em casamento com a pessoa que você ama é profundamente importante e não deveria ter sido retirada de casais do mesmo sexo comprometidos e amorosos”, disse Lee Swislow, diretor executivo da GLAD. “Tratar esses casais de forma diferente dos casais de sexos opostos para fins de casamento prejudica a segurança familiar em todos os aspectos da vida e da morte. Nossa Constituição não permite tal tratamento desigual.”

A Lambda Legal, a GLAD e outras organizações de direitos civis e LGBT lutam pela liberdade de casamento de casais do mesmo sexo há décadas – incluindo a vitória original na Califórnia em 2008. A GLAD obteve a primeira decisão judicial estadual a favor da igualdade no casamento em Massachusetts em 2003, depois em Connecticut em 2008, e ajudou a conquistar a liberdade de casamento em todos os estados da Nova Inglaterra, exceto um. A Lambda Legal lutou pela primeira vez pela igualdade no casamento no Havaí há quase 20 anos, obteve uma decisão unânime a favor do casamento na Suprema Corte de Iowa em 2009 e tem ações judiciais em andamento sobre casamento em Nova Jersey, Illinois e Nevada.

Além de Davidson, outros advogados no processo incluem Mary Bonauto e Gary Buseck da GLAD: e Jennifer Pizer, Hayley Gorenberg, Susan Sommer e Camilla Taylor da Lambda Legal.

O resumo pode ser lido aqui.

278 businesses, legal and financial firms, professional and trade organizations, and cities and towns filed a brief of amigos da cúriawith the United States Supreme Court today saying that Section 3 of the federal Defense of Marriage Act (DOMA) creates complications for employers and employees and should be overturned.

The brief, which can be read here, was filed in the case Windsor v. Estados Unidos, which is challenging Section 3  of DOMA as unconstitutional. The list of signers can be found aqui.

Today lawyers for Edith Windsor filed a brief in United States Supreme Court asking the Court to find Section 3 of the Defense of Marriage Act (DOMA) unconstitutional on the grounds that it violates Ms. Windsor’s “right to the equal protections of the laws as guaranteed by the Fifth Amendment.”

Ms. Windsor is challenging DOMA as discriminatory, in the case known as Windsor v. Estados Unidos, because the law requires her to pay taxes on the estate of her late wife, Thea Spyer, that a different-sex spouse would not be required to pay.

Read the brief, filed by Robbie Kaplan of Paul, Weiss and the ACLU, aqui.

Read more at the Washington Blade.

Em um processo hoje sobre os méritos da Seção 3 da Lei de Defesa do Casamento (DOMA), o governo Obama argumentou que a disposição é inconstitucional e pediu ao Tribunal que a revogasse.

O resumo, arquivado em Windsor v. Estados Unidos, argumenta:

A Seção 3 da DOMA viola a garantia constitucional fundamental de proteção igualitária. A lei nega a dezenas de milhares de casais do mesmo sexo legalmente casados sob a lei estadual uma série de importantes benefícios federais disponíveis para casais de sexos opostos legalmente casados. Como essa discriminação não pode ser justificada como uma forma de promover substancialmente qualquer interesse governamental importante, a Seção 3 é inconstitucional.

Leia o resumo aqui.

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