Paul Clement, the lawyer representing John Boehner in lawsuits against DOMA, filed a slew of motions in the Edie Winsdor case yesterday. They want the case dismissed and for the judge to deny Edie’s motion for summary judgment.
The must-read document is the “MEMORANDUM OF LAW IN SUPPORT OF INTERVENOR-DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.” I’ve posted it below. This explains the legal arguments Boehner and Clement are using in their case.
Here’s how it starts:
Plaintiff is not entitled to judgment as a matter of law. Her claim to summary judgment fails at the threshold: Contrary to her arguments, no form of heightened scrutiny applies to Section 3 of the Defense of Marriage Act (“DOMA”). Pub. L. No. 104-199, § 3, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7. Rather, DOMA is subject only to rational basis review. And (as made clear in the memorandum of law simultaneously filed by the United States House of Representatives’ Bipartisan Legal Advisory Group (the “House”) in support of its motion to dismiss), DOMA easily passes the rational basis test and does not violate the Equal Protection component of the Fifth Amendment.
Any effort to redefine the institution of marriage as something other than the union of one man and one woman is a matter best left in the hands of the elected, politically accountable branches of the federal government and the citizenry through the democratic process.
It’s filled with every anti-gay argument around. There’s a desperate attempt by Boehner and Clement to prevent the court from using heightened scrutiny in this case. They want the Judge to use the “rational basis” test, which means just about any reason Congress had to pass the law is acceptable.
A few highlights.
Clement argues that even if gays have faced discrimination, that’s changing:
Moreover, whatever the historical record of discrimination, the most striking factor is how quickly things are changing through the normal democratic processes on issues ranging from same-sex marriage to “Don’t Ask Don’t Tell” and beyond.
Um, he’s trying to prevent the change, thus furthering the discrimination.
Boehner’s lawyer also makes the assertion that gays aren’t born that way:
Plaintiff next argues that sexual orientation is immutable. Pl.’s Mem. Summ. J. at 17-18. She states that “the Attorney General has recognized ‘a growing scientific consensus [that] accepts that sexual orientation is a characteristic that is immutable.’” Id. at 18 (second alteration in original) (quoting Feb. 23, 2011 Letter from Eric A. Holder Jr., Att’y Gen., to John A. Boehner, Speaker of the U.S. House of Reps. (Feb. 25, 2011) (ECF No. 10-2)) (“Holder Letter”). Whether a classification is “immutable” is of course a legal conclusion – not a scientific one – and the Attorney General’s selective reading of scientific evidence warrants no deference from this Court. His conclusion and the Plaintiff’s argument are also both wrong.
Maybe Clement is going to use Marcus Bachmann as his expert on that one.
Also, according to the Boehner legal team, gays are very politically powerful. Who knew?
And, in the section titled,”Plaintiff Misstates the Science on Same-Sex Parenting,” Clement and Boehner insinuate that gays really aren’t good parents, or at least, they believe, there’s no proof of that.
So, yeah. Ugly. Not unexpected. But, ugly. Definitely shows that they hate the gays, which kinda makes our side’s point.