Windsor v. United States Case Heats Up

Thanks to the Human Rights Campaign, I just found out about this lawsuit. Have people been following this case? What do you think?

On Monday, lawyers for the House Bipartisan Legal Advisory Group (BLAG) filed their latest arguments using your taxpayer dollars to defend the discriminatory Defense of Marriage Act (DOMA) in federal court, in Windsor v. United States. As you’ll recall, in that case, Edie Windsor is challenging the hefty tax penalty she faces as she inherits her late wife’s estate because of DOMA, a penalty that would not apply if her spouse had been a man.

The BLAG lawyers seem to be using an interesting defense for DOMA:

Most of their brief is spent, instead, trying to convince the court that sexual orientation is not immutable and that gays and lesbians have inordinate political power.

They cite the work of HRC, the Victory Fund and other groups as proof positive that “gays and lesbians have achieved and continue to achieve substantial political success.”

So, the HRC’s own victories are being used against them, in an attempt to argue that because a minority group has made recent headway in gaining civil rights, that group is not at a significant disadvantage, based on the criteria for how courts decide to apply heightened scrutiny to a case.

When deciding whether to apply heightened scrutiny, courts typically consider two factors:
(1) whether there is a history of discrimination based on the characteristic
(2) whether the characteristic is relevant to one’s ability to participate in or contribute to society.
They sometimes also consider
(3) whether the characteristic is immutable
(4) whether the group is particularly vulnerable politically.

Read the HRC’s full article for further analysis of the brief, including specific arguments BLAG makes as to each of the 4 points.