The Obama administration urged the Supreme Court to strike down the Defense of Marriage Act in a brief filed Friday, declaring the 1996 federal law to be unconstitutional.
Arguing that Section 3 of DOMA, which forbids federal recognition of same-sex marriage, violates the Constitution, Solicitor General Donald Verrilli writes that DOMA also deserves heightened scrutiny because of the history of discrimination faced by gays and lesbians.
"Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection," the brief reads. "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."
On the issue of heightened scrutiny, the brief states that "gay and lesbian people have long suffered discrimination in employment, immigration, criminal violence, child custody, police enforcement, voter referenda, and other contexts."
[G]ay and lesbian people are a minority group with limited political power. Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action.
The brief also takes issue with arguments advanced by the Republican-controlled House Bipartisan Legal Advisory Group (BLAG), which has been defending DOMA in federal court since the Obama administration stopped doing so in February 2011, including its argument that this is an issue that should not be decided by the courts.
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.
Moreover, the brief states that arguments made by BLAG that DOMA protects the institution of marriage and its perceived purpose — procreation — are flawed.
"Even apart from the expert consensus that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents, Section 3 does nothing to promote responsible opposite-sex parenting or to prevent irresponsible same-sex parenting," the brief reads. "Denying federal benefits to married same-sex couples creates no additional incentive for heterosexual couples to marry, procreate, or raise children together; nor does it disturb any state-conferred parental rights for same-sex couples."
The brief comes in the case of United States v. Windsor, which surrounds Edith Windsor, who has been challenging DOMA since 2010, following the death of her wife, Thea Spyer. Windsor is suing to recoup about $363,000, the federal estate tax she was forced to pay on her "inheritance" from Spyer. The federal government does not tax wealth that passes to a surviving heterosexual spouse. Because of DOMA, however, the federal government has refused to recognize Windsor and Spyer's marriage. According to the American Civil Liberties Union, which is assisting Windsor in her suit, payment of the federal estate tax is one of the most damaging impacts of DOMA.
Living most of their lives in New York City's Greenwich Village, Windsor and Spyer were engaged to marry in 1967, and finally did so with a Canadian wedding license in May 2007. Nevertheless, Windsor's lawyers point out that DOMA requires the government to view the couple as legal strangers.
The brief was one of two filed by the Department of Justice today. The other related to the administration's right to pursue an appeal. BLAG also filed a brief challenging the government's right to appeal and lawyers for Windsor filed a brief urging the Supreme Court to rule in the case. Oral arguments are scheduled to begin before the high court on March 27 with a ruling expected in June.
[Photo: Supreme Court (Courtesy of Matt Wade/Wikimedia Commons).]
Read the full brief here: