United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman. A copy of the letter is also attached.
§ 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follow s that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v.
The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
That's the essence of the problem: if Congress did its job and forced IRS to apply the law as written, revenues would shrink. If Congress wanted to maintain revenues by lawfully and directly taxing the labor of Americans it would face the scrutiny and approval of The People. The fact is, The People may not approve.
Before going to the subject of your books-the 16th Amendment to the Constitution of the United States of America was not properly ratified-I wish to lay some groundwork. In 1895 the United States Supreme Court ruled a direct income tax to be unconstitutional in the case of Pollock v. Farmer's Loan and Trust Company (158 U.S. 601).
The fact of the matter is that, for better or worse, the 16th Amendment to the Constitution was declared ratified by the requisite three-quarters of the states, then 38 states, on February 25, 1913. It was subsequently ratified by four additional states. Only four states rejected the amendment.
Even so, a proper understanding of the Sixteenth Amendment reveals that it did not allow the IRS to improperly use the law to make direct tax assessments against the working people's income from labor.
The Supreme Court, assuming it has valid reasoning, could reverse the Pollock case; or, An Amendment to the Constitution authorizing a direct income tax could be passed by a vote of two-thirds of both houses of Congress and then ratified by the legislatures of three-fourths of the States.
Since a personal letter cannot be distributed, or even shown, to anyone other than the recipient without permission of the author, I hereby authorize you to show it (not publish it) to other people at your discretion. This letter is to be shown only and not to be published as Warren has requested. Bill Benson.