— by Lynn Zeitlin, JSPAN Past President
There are two cases before the United States Supreme Court involving same-sex marriage. We are pleased to announce that JSPAN has joined the two amici briefs for which the ADL was the lead amicus.
One brief was filed in support of Edith Windsor, who challenged the constitutionality of Section 3 of the federal Defense of Marriage Act (“DOMA”), after being denied treatment as a surviving spouse under federal estate tax and other laws despite having been legally married in Canada. Section 3 of DOMA amends the United States Code to define “marriage’ and “spouse” for federal laws, rules and regulations as follows: “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.”
More after the jump.
The brief JSPAN signed makes the argument that Section 3 of DOMA violates not only the Fifth Amendment’s guarantee of Equal Protection but also the Establishment Clause of the First Amendment. The brief points out that numerous religious denominations recognize marriages between two men and two women and points out that the Establishment Clause prohibits laws that favor a particular religious view over others and does not have a secular purpose as its primary purpose or effect. The brief argues that DOMA had only a religious purpose that flies in the face of longstanding Establishment Clause principles and is therefore unconstitutional. The Fifth Amendment argument is grounded in the absence of any legitimate governmental purpose in enacting DOMA so that the only motivation for its passage was moral disapproval of gay and lesbian people, which has never been a sufficient rationale for justifying a law that discriminates, citing Justice O’Connor’s concurrence in the Lawrence v. Texas case that overturned a Texas law criminalizing gay sex practices.
The second brief joined by JSPAN is in the case out of California popularly known as the Prop 8 case. In May 2008, the California Supreme Court ruled that the California law barring same-sex couples from marrying violated the state’s constitution. In November that same year, Proposition 8 was passed by voters; it defined marriage as between one man and one woman. The brief makes the same point as the Windsor brief, pointing out that the Court no longer relies on religious or moral disapproval as a legitimate basis for any law. Thus, the brief argues, laws that discriminate against historically disadvantaged minorities have been rejected by the courts as societal support for discrimination.