Wednesday, January 23, 2013

Queer Quote: GOP Brief Claims Gays Are Powerful

In their opening 60-page brief to the United States Supreme Court defending the odious Defense of Marriage Act (DOMA) in the U.S. v. Windsor case, the Republican U.S. House majority claims, in a brief written under the name of conservative superlawyer Paul Clement (who has billed federal taxpayers nearly $3 million to date for his services), that gays and lesbians do not deserve the "equal protection of the laws" found in the 5th and 14th Amendments to the United States Constitution because they are too "powerful."

And that, dear reader, leads to today's Queer Quote:
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.  Characterizing such a group as politically powerless would be wholly inconsistent with this Court’s admonition that a class should not be regarded as suspect when the group has some “ability to attract the attention of the lawmakers.” Cleburne, 473 U.S. at 445. 
Gays and lesbians not only have the attention of lawmakers, they are winning many legislative battles.  And the importance of this factor in the analysis cannot be gainsaid.  This Court has never definitively determined which of the four factors is necessary or sufficient, but given that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.
LGBT Think Progress demolishes this argument pretty convincingly by placing its content in context with the Civil Rights struggles of the 1960s:
One can only wonder what Paul Clement might have written if Virginia had hired him to defend their practice of racial marriage discrimination when it was before the justices in 1967. “Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.
So if a minority group is actually able to organize and win battles in legislatures and at the ballot box Clement (on behalf of the House Republicans, using our tax money) is arguing that the Courts do not need to intervene to strike down an act by the federal legislature which explicitly discriminates against that same group. "Orwellian" or "Catch-22" only begins to describe the logic at play here.

And it is completely historically inaccurate. Congress passed landmark legislation to protect racial minorities in 1964 and 1965 prior to the United States Supreme Court ruling in Loving v Virginia in 1967 that 16 states' ban on interracial marriage violated the United States constitution.

I am waiting with bated breath to see what our side, represented by Mary Bonauto of Gay and Lesbian Advocates and Defenders (GLAD) will say in the reply brief about this and other specious arguments invented to try and defend the indefensible discrimination inherent in DOMA. The good guys have won before the last 10 federal courts to consider DOMA and there's good reason to suspect that the Supremes will rule similarly.

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