WASHINGTON — The Obama administration urged the Supreme Court to strike down the Defense of Marriage Act’s prohibition on recognition of same-sex couples’ marriages in a Friday filing, arguing that laws that target gay people should face additional scrutiny by courts reviewing them.
Under such heightened scrutiny, as it is called, Solicitor General Donald Verrilli says that Section 3 of DOMA, which defines “spouse” and “marriage” under federal law as only those marriages between one man and one woman, is unconstitutional.
In summary, the administration argues:
Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.
Additionally, the administration addresses the question of what should happen to DOMA if the Supreme Court does not agree that such heightened scrutiny applies, writing, “If the Court … applies rational-basis review, the government has previously defended Section 3 under rational-basis review, and does not challenge the constitutionality of Section 3 under that highly deferential standard.” However, the administration adds that the court may consider what has been called a “more searching” form of this rational-basis review, with the lawyers writing:
To the extent sexual orientation may be considered to fall short in some dimension [to have heightened scrutiny applied], the history of discrimination and the absence of relation to one’s capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an “unpopular group.”
Finally, the administration addresses the argument, advanced by House Republicans through the Bipartisan Legal Advisory Group, that this is not an issue for the courts to decide:
BLAG makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.
The filing was expected and echoes arguments made by the Department of Justice in court challenges since President Obama and Attorney General Eric Holder concluded in February 2011 that DOMA was unconstitutional because such heightened scrutiny should apply to laws that classify people based on sexual orientation. Since that time, BLAG — following a 3-2 party-line vote among its members — has been defending DOMA in court challenges. Friday’s filing was a response to BLAG’s brief defending the law.
The administration has yet to take a position on the other case addressing same-sex couples’ marriage rights currently before the court, the challenge to California’s Proposition 8. Although not a party to the case, the administration could file an amicus curiae, or friend of the court, brief to announce its views. The deadline for doing so is February 28.
In addition to Friday’s administration brief on the constitutional merits of DOMA, the administration, BLAG and Windsor’s lawyers all filed briefs Friday regarding jurisdictional questions about whether the Department of Justice’s decision not to defend Section 3 of DOMA means that the court has no controversy to resolve and whether BLAG has the constitutional authority to be a party to the case.
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