Swenton: Section Three of DOMA should be overturned to begin ending government mistreatment of LGBT community
This week, the U.S. Supreme Court heard oral arguments concerning two cases that will shape the progress of gay rights in this country. The court would be wise to avoid repeating the mistakes of Plessy v. Ferguson, which upheld racial segregation by overturning the respective statutes at the center of each case.
On Tuesday, the court heard arguments on Hollingsworth v. Perry. This appellate case calls into question the constitutionality of Proposition 8, a 2008 California ballot initiative that amended the state constitution to allow only opposite-sex marriages.
While Proposition 8’s assertion of an antiquated social construct is reason enough to oppose it, there are also legitimate legal grounds for it being overturned. Opponents argue it violates the 14th Amendment’s Equal Protection Clause, which prohibits states from denying persons under their jurisdiction, “the equal protection of the laws.”
Simply put, all people must be treated equally under the law. A prohibition of same-sex marriage treats certain groups of citizens unequally because of who they are — something declared unconstitutional by the Warren Court’s opinion in Brown v. Board of Education.
Theodore Olson, the attorney arguing against Proposition 8, articulated this argument before the court. He said such a ban tells some people in society their relationships are “second class, different, unequal and not OK.”
The second case, United States v. Windsor, was heard by the court on Wednesday. It challenges Section Three of the Defense of Marriage Act, enacted in 1996. The section in question defines marriage at the federal level as a legal union between a man and a woman, and a “spouse” as someone of the opposite sex who is a husband or wife.
Because DOMA prohibits the federal recognition of same-sex marriages, gay couples do not receive the more than 1,100 federal benefits granted to opposite-sex couples. They cannot file a joint tax return, nor are they eligible to receive certain tax exemptions. Surviving spouses cannot collect the Social Security and military benefits enjoyed by their heterosexual counterparts.
Section Three is unconstitutional because it stands in clear violation of the Due Process Clause found in the Fifth Amendment to the Constitution. The text of this clause states no one may be “deprived of life, liberty, or property, without due process of law.” Traditional interpretation holds that this is a guarantee for procedural due process — fair and just legal proceedings.
But a new interpretation of the text developed in the 20th century. Substantive due process is a doctrine asserting government may only interfere with fundamental rights when such intrusions are fair and in pursuit of a legitimate governmental interest. This interpretation of the Due Process Clause led to landmark decisions in cases such as Roe v. Wade, which established a right to privacy.
The federal government treats same-sex couples as second-class citizens by denying them the benefits extended to others. In this respect, it has failed to uphold its constitutional obligation to honor liberty.
Discriminating against gay people was never done in pursuance of a legitimate government interest. Rather, such a policy was designed to legislate for a certain moral and social worldview, the likes of which was once used to justify slavery and fight against interracial marriage.
Policies such as Proposition 8 and DOMA are excellent examples of homophobia half-heartedly disguised as serious legislation. Many on the right use religion to justify codified discrimination against gay people. Leviticus’ prohibition of sexual relations with those of the same sex constitutes the bulk of their argument that homosexuality is against God’s will, and therefore must be also prohibited by our own secular laws.
The core of this country’s founding principles are enshrined in the Declaration of Independence, which declares that we are endowed with the inalienable rights of life, liberty and the pursuit of happiness.
Ending the federal government’s mistreatment of the lesbian, gay, bisexual and transgender community by overturning Section Three of DOMA would be a step in the right direction.
The advancement of certain rights has never been easy, but history shows change is possible. In the battle for marriage equality, it is no different. To the LGBT community, know this: You have allies who are willing to stand with you and fight for what is right.
David Swenton is a junior political science and writing and rhetoric major. He can be reached at daswento@syr.edu or followed on Twitter at @DavidSwenton.
Published on March 28, 2013 at 2:30 am