Metro Weekly

212 members of Congress urge Supreme Court to rule against DOMA

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More than 200 members of Congress filed a brief today urging the Supreme Court to strike down the Defense of Marriage Act. 

For the first time, 40 Democratic members of the Senate joined 172 Democratic members of the House of Representatives in calling for the high court to declare Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, unconstitutional.

“Having repeatedly urged Congress (including the Speaker of the House) to revisit DOMA legislatively, we believe it important to dispel the notion that BLAG speaks for the entire Congress on the merits. It does not,” the brief reads. “In fact, many Members believe that Section 3 of DOMA is a violation of the Fifth Amendment’s equal-protection guarantee and should be struck down.”

While House Democrats have been vocal in their criticism of DOMA as well as the actions of House Republicans to defend the 1996 law in court after the Obama administration stopped doing so in February 2011, today’s filing marked the first time Senate Democrats have filed a brief in any of the DOMA challenges that have moved through the lower courts.

The brief was signed by Democratic leadership in both chambers, including House Minority Leader Nancy Pelosi (D-Calif.) and Senate Majority Leader Harry Reid (D-Nev.). Every LGB member of Congress, including Sen. Tammy Baldwin (D-Wis.) and Reps. Jared Polis (D-Colo.), David Cicilline (D-R.I.), Sean Patrick Maloney (D-N.Y.), Mark Pocan (D-Wis.), Kyrsten Sinema (D-Ariz.) and Mark Takano (D-Calif.) signed the brief.

Agreeing with many of the arguments made by the Obama administration in a brief filed last week, the 212 members of Congress urge the high court to apply heightened scrutiny in laws that target groups based on sexual orientation. Moreover, they argue that even if heightened scrutiny is not applied, DOMA should still be struck down.

We also believe that DOMA must fail even if it does not trigger heightened review. Virtually every aspect of DOMA and its legislative history—the lack of objective, rational fact-finding to connect the exclusion of married same-sex couples to a legitimate federal interest; the sweeping exclusion of gay men and lesbians based on a single identifiable trait; and the open desire of some to express disapproval of that minority group—distinguishes it from routine Acts of Congress. None of the arguments advanced in its defense is sufficient. DOMA lacks the required rational connection to a legitimate federal interest: “It is a status-based enactment divorced from any factual context from which [the Court] could discern a relationship to legitimate [federal] interests.”

Today is the deadline for briefs in the DOMA case, with arguments scheduled to begin before the court on March 27. After yesterday’s deadline for briefs in the Proposition 8 case, it does not appear congressional Democrats have filed a brief in that case.

UPDATE: Drew Hammill, a Pelosi spokesman, provided this statement to Metro Weekly on the lack of a brief from congressional Democrats in the Proposition 8 case: “From the outset, Leader Pelosi has strongly opposed Proposition 8, and believes that the legal advocacy by opponents of Proposition 8 has been outstanding. The Leader looks forward to the day when all Californians – and indeed, all Americans everywhere – have the right to marry who they love. She appreciates the President’s strong leadership in favor of overturning Proposition 8 and of striking down DOMA.”

Read the full brief here:

DOMA Congressional Brief

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Justin Snow is Metro Weekly's former political editor and White House correspondent. Follow him on Twitter @JustinCSnow.

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