| PETITION FOR WRIT OF CERTIORARI - Statement of Case | |
STATEMENT OF THE CASE
There are 15-30 million homosexuals in the United States, many of whom have families that are not recognized by the government of the United States of America. A better approximation is not known because Congress has refused to fund studies to find out how many people are homosexuals and how they are affected by the laws of the United States. Under the Constitution of the United States, individuals are not allowed to sue Congress, so this group identified as homosexuals has limited recourse to the actions of that body. Surrogates such as the Commissioner of Internal Revenue must be used to approach the Courts to address issues of discrimination and unequal treatment. In Boy Scouts v. Dale, the Supreme Court held that private organizations can discriminate against homosexuals. This case asks whether public organizations like the United States Congress have the same right to discriminate. The filing of a tax return has many more implications than merely determining how much money is transferred from an individual to the federal government. This form is how an individual identifies his/her family unit to the federal government. As stated several times in Judge Laro's ruling (Appendix A), homosexuals in the United States are assigned a single status when it comes to taxation, while heterosexuals have options. Heterosexuals are given a means by the state to document their families; homosexuals are not. Recently Vermont became the first and only state to grant that right to homosexuals, but even those who get a document from the state of Vermont are refused recognition at the federal level. - 3 -
Judge Laro is to be commended for addressing the issues presented. Most of the Courts the Petitioner has dealt with try to avoid the issue (Seventh Circuit opinion, Appendix B). However, Judge Laro's arguments are based on decisions that supported the status quo before society started evolving into acceptance and support for homosexuals, the status quo Congress is attempting to preserve when it passes laws like the Defense of Marriage Act. The preamble of the charter of the United Nations contains these phrases: to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to promote social progress and better standards of life in larger freedom, to practice tolerance and live together in peace with one another as good neighbours, Social progress, tolerance and fundamental human rights are what this case is about. First, let us talk about equal protection. Judge Laro's decision implies that equal protection applies only to "suspect classes". This is not true as exemplified by recent affirmative action debates and recent equal protection cases like Saenz v. Roe and Bush v. Gore. The petitioner does not seek to create another suspect class, although there is plenty of evidence to support the idea that homosexuals would qualify for such protection. Adding another group to the list is not the answer. We as a society must be open enough, mature enough, to - 4 -judge primarily on merit and individual circumstances. That is how "social progress and better standards of life" will be achieved. "Equal protection" is the way it has been phrased in the United States Constitution. Equal protection is violated in the tax laws when a Court can conclude that the appropriate filing status for homosexuals is single - period. Both the petitioner and the Court cited GAO/GGD-96-175, the report on single v. married taxpayers. The Court concentrated on the finding that married status is not always favorable. The petitioner concentrates on the fact that "married" people have options to choose how to deal with the favorable and unfavorable conditions. This case asks that those options be extended to homosexuals. Heterosexuals have the options to remain single, cohabitate, and marry. Homosexuals have the first two options; the federal government does not recognize the third option, and, in fact, has legislated against it or an equal option in the Defense of Marriage Act. The petitioner is pursuing the ideas presented in Braschi v. Stahl Associates, 74 N.Y.2d 201, 543 N.E.2d 49, 544 N.Y.S.2d 784 (1989):
A more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long-term and characterized by an emotional and financial commitment and interdependence
And from Seattle, Washington, city ordinance 117244:
WHEREAS, significant changes in our society have resulted in the creation of diverse living - 5 -
arrangements and the development of an expanded concept of the family unit; and
WHEREAS, many of these living arrangements Involve long-term committed relationships of unmarried persons; and WHEREAS, the City of Seattle recognizes that families and other long term committed relationships foster economic stability and emotional and psychological bonds; and ...
And from the Surgeon General of the United States on June 28, 2001:
Sexual orientation is usually determined by adolescence, if not earlier, and there is no valid scientific evidence that sexual orientation can be changed. Nonetheless, our culture often stigmatizes homosexual behavior, identity, and relationships. These anti-homosexual attitudes are associated with psychological distress for homosexual persons and may have a negative impact on mental health, including a greater incidence of depression and suicide.
Judge Laro wants to group homosexuals with unmarried heterosexuals and extended families. This grouping is not supported by the reality of modern society. In adapting new standards for the health care industry, even the Health and Human Services Department incorporated an American National Standards Institute standard, ANSI X12 837, Version 004010X096, May, 1999, that includes a separate relationship code for homosexual partners v. the - 6 -
other groups Judge Laro cited. This is in response to the changes that have been happening in the private sector that Congress, as the leader of the public sector, has chosen to ignore. In footnote 4 of Judge Laro's decision, he incorrectly represents the Petitioner in stating "Petitioner claims that the Federal tax laws specifically began to target homosexuals as a group after the enactment of the Defense of Marriage Act(DOMA)." What the Petitioner has stated is that Congress felt bold enough to codify discrimination in 1996 with the Defense of Marriage Act. The discrimination has been present for many years, but it has seldom been so openly demonstrated as in 1996. See Appendices C and D, excerpts from the Congressional Record from the debates on DOMA. In those debates, one can read about the Family and Medical Leave Act, where homosexual families were purposely excluded. The use of the term "marriage" and "spouse" are sources of de facto discrimination against homosexuals, as Congress was well aware that no state had established a procedure for recognizing homosexual families. The Defense of Marriage Act grew out of a fear that Hawaii might establish such recognition, which could then spread to other states. (Hawaii went to the extent of amending its state constitution to redefine equal protection, but Vermont has since established civil unions as a "separate but equal" status within the state.) The DOMA definition has now found itself into recent tax laws. Targeted discrimination has been in the federal laws for a long time; the difference is now it has been openly codified. Therefore, the principle of equal protection is being violated.
Second, let us deal with the principle of separation of church and state. Even religious institutions in the United States and throughout the world are confronting or being confronted with how homosexuals are treated. In the United States, because of the separation of church and state, heterosexuals who choose to have a religious ceremony must also have a secular document issued by the state to recognize their union (common law marriage being an exception). Homosexuals can find religious institutions to perform similar ceremonies, but only Vermont currently offers the secular document, and that is not recognized by the federal government. Knowing full well that most states do not offer such recognition, Congress, in passing the Defense of Marriage Act, endorsed continuation of this de facto discrimination. One only has to scan GAO/OGC-97-16 Defense of Marriage Act to get an idea of the harm caused by use of the current definition of "married" and "spouse". And as one reads the Congressional Record, several legislators cite religious reasons for their positions. Because of the principle of separation of church and state, a rational basis and a valid governmental interest must be provided when classifications cause harm. There is no rational basis and there is no valid government interest in discriminating against homosexuals; in fact, the exact opposite is true. Non-discrimination is an ideal of this country, yet, in dealing with 10% of the population, it is now codified discrimination. Finally, let us deal with the issue of cruel and unusual punishment. The best estimates are that homosexuals comprise 5-12% of the population of the United States. Congress has on several occasions been asked to do studies, most recently during the DOMA debates, but it has continually denied funding for such a study. Appendices C - 8 -
and D show that Congress is aware of the issue, but it refuses to examine it further. The Defense of Marriage Act is a cruel act because it refuses to consider the idea that homosexuals have families. Think of how often one hears the term "family" during a political campaign. Now think about being a homosexual with a partner who knows that the term does not apply to him/her. Is there anything crueler than not recognizing one's family? And now it is codified at the federal level against 10% of the population; unusual, yes. Taxes are used to fund support for families for both current and future needs. Because homosexuals do not have a mechanism for gaining government recognition of their families, they must find means to identify their families that heterosexuals do not need when they "marry". From Romer v. Evans (116 S.Ct. 1624),
the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application.
In theory, Congress was trying to correct a valid problem with the Defense of Marriage Act. Until that act, state law was the sole determination of the definition of "marriage", "married", and "spouse", throughout federal law, including tax law. This violates many Constitutional principles. Recent Supreme Court rulings in Saenz v. Roe, redefined the principle of state-to-state movement - violated by use of state law; and Bush v. Gore talks about uniform standards as a requirement for equal protection. The Defense of Marriage Act would have been a step in the right direction had it established a national standard for homosexual as well as heterosexual families. In reality, it did neither, re-endorsing this vague idea of a legal union "between one man and one woman" as husband and wife. The definition of legal union is missing, so even if the discriminatory nature of the law were not present, the law would be dismissed as vague and ineffective. But the law further violates another of the key points in Saenzv. Roe, the principle that cost is not a valid reason for denial of equal protection. Yet cost and religious reasons are the two major reasons given in the Congressional Record for refusing to recognize homosexual families. This further substantiates the Constitutional violations the petitioner presents - equal protection, separation of church and state, and cruel and unusual punishment.
Contribute to G/L Issues
to help with our expenses
