Without in any way detracting from Gary Endelman's cogent and well founded arguments for attacking the Defense of Marriage Act (DOMA) on constitutional grounds (ID, June 29) there is one other Supreme Court case that also deserves mention. This is Lawrence v. Texas 539 U.S. 558 (2003), which overturned a state "sodomy" law criminalizing same sex sexual relations. While Lawrence was ostensibly decided on 14th Amendment right to privacy grounds, both Justice Kennedy's majority opinion and Justice O'Connor's concurring opinion (which was based on equal protection grounds) made clear that there was a broader issue involved, going beyond merely the right of consenting adults to decide what kind of sexual conduct to engage in in the seclusion of their own bedroom.
This broader issue was that of the fundamental personal liberty to enter into same sex relationships, including marriage. Justice Kennedy cited the Supreme Court's decision in Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 (1992), in which the Court has said that our laws and traditions afford constitutional protection to personal decisions relating to marriage, procreation, contraception, child rearing and education. Justice Kennedy quoted from the Casey decision as follows:
"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state". (539 U.S. at 574)
Justice O'Connor's concurring opinion in Lawrence attacked the constitutionality of the Texas statute on different grounds, namely equal protection, stating that prohibiting same sex sexual relations was an invidious form of discrimination. As if to bear out her point, Justice Scalia's dissent made little attempt to conceal the hate and prejudice underlying the attempt to uphold the Texas law, showing a spirit of intolerance not at all unlike that of the attempts to uphold Virginia's anti-miscegenation law which was held unconstitutional in Loving v. Virginia 388 US 1 (1967), mentioned in Mr. Endelman's article. In Justice Scalia's words:
"Today's opinion in the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct". (539 U.S. at 602)
There it is - what will the choice be for same sex couples? Fundamental liberty and freedom from discrimination, or continuing to be the target of prejudice and hatred a/k/a/ "moral opprobrium"?This is the issue raised by DOMA. If one believes, as this writer does, that the answer to this question is clear, then there is not the slightest excuse for continuing to enforce a clearly unconstitutional statute such as DOMA in any area of the law. Immigration rights should be no exception.
Roger Algasee is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years