Govt moves to dismiss McConnell v USA

Bush lawyers claim Supreme Court has already declared barring same-sex marriage Constitutional

By Tim Campbell
All rights reserved August 21, 2004

Arguing to dismiss McConnell v USA, attorneys for the Bush administration claim "the U.S. Supreme Court has already held that a prohibition against same-sex marriage comports with the United States Constitution."

McConnell v USA is the lawsuit brought by J. Michael McConnell against the Bush administration and the Internal Revenue Service over McConnell’s right to file a joint income tax return with his male spouse, Pat Lyn McConnell better known as Richard "Jack" Baker. Baker is acting as McConnell’s attorney. Actually, McConnell is filing an amendment to his year 2000 filing in which he changes his claimed status from single to married.

The government’s motion to dismiss was filed July 28 in U.S. District Court for Minnesota. Oral arguments will be heard September 23 by Jonathan Lebedoff, Magistrate to Judge Joan N. Ericksen.

The government moves to dismiss McConnell v USA on arguments in four main categories: preclusion by McConnell's first filing as unmarried; preclusion by McConnell’s previous litigation; preemption by findings that the prohibition of same-sex marriage is Constitutional in McConnell’s own lawsuits; preemption by the Defense of Marriage Act (DOMA) passed in 1996.

Preclusion by McConnell's original income tax filing as single
The government's first and most simple reason for moving to dismiss McConnell v USA is that "By reporting his filing status as single, head of household, and neither married filing separately nor married filing jointly, plaintiff originally admitted that he was not married." To bolster that argument, the government quotes tax code which reads: "For purposes of this subtitle, an individual shall be considered a head of a household if, and only if, such individual is not marrat at the close of his taxable year...".

Preclusion by McConnell’s previous lawsuits
The government claims McConnell has already litigated whether he can file joint income tax returns based on his purported marriage to another male, whether same-sex marriage is permitted under Minnesota law, whether a prohibition of same-sex marriage comports with the United States Constitution, and even whether he has the right to relitigate these issues. McConnell lost all those lawsuits, notes the government.

Preemption by decisions on Constitutional issues in McConnell’s previous lawsuits.
The government bases it’s argument that laws against same-sex marriage are Constitutional on Baker v Nelson (Minn. 1971), in which Baker and McConnell argued they should be granted a marriage license under the Due Process Clause and the Equal Protection Clause of the U.S. Constitution. The Minnesota Supreme Court and the U.S. Court of Appeals found against Baker and McConnell. The Supreme Court refused to review that case "for want of a substantial federal question."

Baker v Nelson held that the Minnesota statute authorizing marriage does not authorize same-sex marriage so that same-sex marriage is prohibited. That decision also hold that such prohibition does not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.

The government’s brief argues: "Baker definitively establishes that neither the Due Process Clause nor the Equal Protection clause bars the states from limiting marriage to one man and one woman. A fortiori, Baker definitively establishes that the federal government, in defining marriage for purposes of federal benefits statutes, may likewise incorporate the traditional opposite-sex definition."

Remark that Baker v Nelson involves Baker and McConnell’s May 18, 1970 application for a marriage license. It does not involve their actual marriage September 3, 1971 with a different license acquired in a different county over a year later, but before October 15 the decision of the Minnesota Supreme Court in in Baker v Nelson. That precise timing may prove critical.
Preemption by DOMA and previous anti-gay decisions

Finally, in case the Court does buy any of the preceding arguments, the government argues that McConnell is barred from joint income tax return savings by DOMA. It reuses Baker v Nelson to argue for DOMA’s own Constitutionality. It argues that DOMA does not impinge upon any fundamental rights, does not create any suspect classification, and does have a rational basis.

As regards fundamental rights, the government’s brief acknowledges that the right to marry qualifies as "fundamental" under Constitutional standards, it argues that the right to marry someone of the same sex is somehow not fundamental.

As regards creating "suspect classifications," the government argues "Under settled precedent, classifications based on sexual orientation are neither suspect nor quasi-suspect, and thus do not trigger heightened scrutiny." The "settled precedent" referred to consists of two cases, one in the Eighth Circuit Court in 1996 and one in Minnesota District Court in the year 2000.

As regards rational basis, the government argues "DOMA is rationally related to the legitimate government interest in encouraging the development of relationships optimal for procreation and childrearing." On this point, the brief cites the U.S. House Judiciary Committee: "The benefits and obligations of marriage are rooted in the inescapable fact that only two people, not three, only a man and a woman, can beget a child." Hence the government argues, "DOMA is rationally related to Congress’s plainly legitimate interests in encouraging the optimal social arrangements for procreation and childrearing."

So what say experts?

Arthur S. Leonard, editor of Lesbian and Gay News Notes and professor of law at New York Law University offered this comment after a brief consideration of the motion to dismiss: "They seem to be throwing every argument at you that they can, and hoping that one will stick."

Another observer knowledgeable in law and close to the case commented, "They were firing with buckshot but aiming in the wrong direction."

[Tim Campbell email: http://us.f601.mail.yahoo.com/ym/Compose?To=timcampbellxyx@yahoo.com]