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Boehner and Clements Respond To Judges Questions On Why DOMA Should Be Defended With Anti-Gay Rhetoric

Last week Back2Stonewall.com reported that United States Magistrate Judge John Francis issued an order compelling John Boehner and the Gop’s lawyer Paul Clement to answer two questions.about why anyone would bother defending a discriminatory law already deemed “unconstitutional” by the Department of Justice.

 Today, we got the answers to those questions. With some very typical anti-gay rhetoric and the repetition that defending DOMA is both a “compelling justification” and a “legitimate government interest.  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.

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.

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.

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.

So in a very cracked and anti-gay nutshell Boehner and Clements are arguing that DOMA should be defended because Lesbian and Gays are gaining slow incremental righst that every other American citizen has through Congress and will get there eventually and that there is no proof that people are actually born gay anyway.  And to just put that extra special gay hating zinger in there in the section entitled Plaintiff Misstates the Science on Same-Sex Parenting,” Clement and Boehner insinuate that gays really aren’t good parents anyway.

These are your tax dollars at work

You can head over to AmericaBlogGay and read the entire “MEMORANDUM”  It’s a dooooooooooooozy


Will Kohler

Will Kohler is a noted LGBT historian, journalist and owner of Back2Stonewall.com. A longtime gay activist, Will fought on the front lines of the AIDS epidemic with ACT-UP and continues fighting today for LGBT acceptance and full equality. Will’s work has been referenced in notable media venues as MSNBC and BBC News, The Washington Post, The Daily Beast, Hollywood Reporter, and Raw Story,

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