Saturday, March 5, 2011

DOMA and Boehner's Defense

         There has been a lot of squawking from the gay blogosphere as the news of the House of Representatives pending jump into the Defense of Marriage Act fray. To many it seems as though the Republicans in the House – led by John Boehner and Eric Cantor – are bowing to the political pressure of their social conservative base. Though this may be the case (like any move, political ramifications are taken into account), I feel that it is best thing for the LGBT community with the route that the House is preparing to take. Why? Because in the end, it is through the Courts that our victories are to be won, and thus the irrationality of our opponents arguments must be made apparent.
     
      HRC released a press release the other day, stating their disappointment with the DOMA defense, and stated,

The decision to mount an all-out defense of DOMA is particularly hypocritical given the Speaker’s contention that the President was distracted from focusing on the economy by DOMA,” said Solmonese. In order to defend the constitutionality of Section 3 of DOMA in court, Congress would likely have to make arguments that could include:

· That gays and lesbians have not faced a history of discrimination
· That one’s sexual orientation is in fact relevant to a person’s ability to contribute to society
· That, contrary to the opinion of experts, sexual orientation is something that can be changed
· That, despite widespread laws such as marriage amendments disadvantaging gays and lesbians, they are politically powerful.
· That the federal government is justified in violating the federalist tradition of leaving marriage and family law to the states

“A far right fringe may be calling for a defense of DOMA, but doing so is sure to turn off independent voters,” said Solmonese. “John Boehner should realize that the world has changed since 1996 and fair-minded Americans won’t like what House Republican leaders have to say when trying to justify federal discrimination against some of a state’s lawful marriages.”
       
       Of course you would expect HRC to react the way that they have…for that is their role as a lobby group. Yet when we see the rationale behind the Department of Justice’s refusal to defend DOMA in the 2nd Circuit Court of Appeals, we see that the House will also have a very difficult time defending the law. As the HRC rightfully pointed out, the House lawyers will have to make arguments that will be very difficult to make based upon current knowledge about LGBT people. It is for this reason that I am happy that the House is taking up this defense, for it will again become readily apparent in a Court of law that the justifications used for rational basis review rather than higher scrutiny are weak, ineffective, and based on pure animus.

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