Academic journal article The Journal of Gender, Race and Justice

Brief for Amici Curiae Scholars of the Constitutional Rights of Children in Support of Respondent Edith Windsor Addressing the Merits and Supporting Affirmance

Academic journal article The Journal of Gender, Race and Justice

Brief for Amici Curiae Scholars of the Constitutional Rights of Children in Support of Respondent Edith Windsor Addressing the Merits and Supporting Affirmance

Article excerpt

No. 12-307

In The

Supreme Court of th United States

UNITED STATES OF AMERICA,

Petitioner,

v.

EDITH SCHLAIN WINDSOR, in her capacity as executor of the estate of THEA CLARA SPYER, et al.,

Respondents.

On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit

BRIEF FOR AMICI CURIAE SCHOLARS OF THE CONSTITUTIONAL RIGHTS OF CHILDREN IN SUPPORT OF RESPONDENT EDITH WINDSOR ADDRESSING THE MERITS AND SUPPORTING AFFIRMANCE

QUESTION PRESENTED

Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.

INTEREST OF AMICI CURIAE1

Amici, scholars and professors primarily of family law and the law of equal protection, submit this brief to respond directly to arguments advanced by the Bipartisan Legal Advisory Group (BLAG) that the Defense of Marriage Act (DOMA) is justified because it advances child welfare. Specifically, BLAG asserts that DOMA advances child welfare by: (1) providing a stable structure to raise unintended and unplanned offspring; (2) encouraging the rearing of children by their biological parents; and (3) promoting childrearing by both a mother and a father.2 Each of these purported justifications expresses and enforces a bare preference for the children of opposite-sex couples as the only children entitled to the type of permanency, stability and so-called "ideal" parenting arrangements that DOMA allegedly confers. These articulated justifications reveal that DOMA's real function is to draw invidious distinctions between families headed by opposite-sex parents and families

headed by same-sex parents, and, by implication, between the children in these families.

Amici's scholarship refutes the validity of BLAG's child welfare justifications by delineating the legal, economic and psychological injuries that DOMA inflicts on children with same-sex parents. Amici's scholarship further demonstrates that DOMA is categorically impermissible under this Court's equal protection jurisprudence because it punishes children for the conduct of their parents.

SUMMARY OF ARGUMENT

BLAG acknowledges that the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike,"3 and yet DOMA patently violates this most fundamental understanding of the equal protection guarantee. The children of same-sex married couples are identically situated to the children of opposite-sex married couples, in terms of their need for and entitlement to the types of family-supporting governmental rights and benefits regulated by DOMA. Yet DOMA imposes permanent class distinctions between these two groups of children by penalizing the children of same-sex couples merely because their parents are of the same sex.

Further, this Court has made clear that the government may not punish children (by, for example, denying them government-conferred benefits4) based on moral disapproval of the parents' relationship, or in an effort to regulate the parents' conduct.5 DOMA punishes children for conduct over which they have no control, which bespeaks invidious discrimination rather than an effort to attain legitimate governmental objectives.6

Amici advance two main points. First, DOMA affirmatively harms children. Although advocates and commentators have thoroughly documented the ways in which DOMA disadvantages same-sex couples, less attention has been paid to the class of children adversely affected by DOMA's discriminatory framework.7 As demonstrated below, a significant number of children in the United States are being raised by same-sex couples, as well as by single gay and lesbian parents. DOMA inflicts immediate, concrete injuries on a subset of these children, namely: those whose families would otherwise benefit from federal family-supporting programs, but whose parents' marriages, while recognized on the state level, are rejected at the federal level. …

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