Citizens United, the conservative nonprofit organization perhaps most famous for its Supreme Court case regarding campaign finance funding, has made a controversial claim in an amicus brief filed in support of the Defense of Marriage Act (DOMA).
Citizens United argues that DOMA -- which limits the definition of marriage to being between a man and a woman for determining beneficiaries for federal programs -- is constitutional. It also argues that the lower courts that ruled it unconstitutional are wrong.
One of the arguments Citizens United singles out is the "equal protection component" of the Due Process Clause of the Fifth Amendment. This equal protection clause was solidified by precedent set during the Civil Rights movement regarding desegregation -- precedent the conservative nonprofit now says should be repudiated.
The group claims this "judicial fiction" of equal protection is a "mythical component" and should be acknowledged as such:
It is past time for this Court to bring to an end the line of atextual cases begun with Bolling v. Sharpe in 1954, and to place itself back under the authority of the Constitution as it is written.
The "atextual case" Citizens United is referencing, Bolling v. Sharpe, 347 U.S. 497 (1954), is a landmark desegregation case that was decided on the same day as its famous cousin, Brown v. Board of Education, 347 U.S. 483 (1954).
The Court ruled that "racial segregation in the public schools of the District of Columbia is a denial to Negro children of the due process of law guaranteed by the Fifth Amendment," according to Cornell Law School, concluding that while "the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."
Citizens United claims that this decision was wrong, Think Progress' Ian Millhiser reports. The Constitution's Fifth Amendment includes no guarantee against discrimination -- for racial minorities in the public school system, or for gays and lesbians attempting to get married.
"If the justices buy their argument — as they were all too willing to do in the case that bears Citizens United’s name — it would mean that Congress is free to set up its own Jim Crow laws," Millhiser wrote.
Citizens United is just one of many groups that have filed amicus briefs supporting DOMA so far. Others include the National Organization of Marriage and Westboro Baptist Church, according to Gay & Lesbian Advocates & Defenders (GLAD).
The Supreme Court will hear arguments in Windsor v. United States starting March 27. The Court will hear arguments on a similar case contesting the Constitutionality of California's Proposition 8 gay marriage ban on March 26.