In a Friday filing, the Obama administration called the Defense of Marriage Act (DOMA) unconstitutional and urged the Supreme Court to strike down the 1996 law’s prohibition on federal recognition of same-sex marriages.
The law, as it stands, denies benefits to family members of federal employees who are gay. Solicitor General Donald Verrilli is asking the Supreme Court to uphold a federal appeals court ruling that found DOMA to be unconstitutional. Verrili is arguing specifically against Section 3 of DOMA, which defines only marriages between one man and one woman.
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. (Source)
The brief encourages heightened scrutiny in cases involving DOMA because ”gay and lesbian people have long suffered discrimination in employment, immigration, criminal violence, child custody, police enforcement, voter referenda, and other contexts.” (Source)
[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.
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.” (Source)
House Republicans, through the Bipartisan Legal Advisory Group (BLAG), have argued that this isn’t an issue that should be addressed and decided by the courts. To address the GOP’s argument, the filing says:
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. (Source)
The brief states that arguments by BLAG and DOMA that are intended to protect the institution of marriage and the perceived purpose of marriage – 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. 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. (Source)
The Obama Administration filing comes in the midst of two other high-profile Supreme Court cases involving same-sex marriage. One case is currently before the Supreme Court and challenges California’s Proposition 8. If the administration decides to announce its views on that case, and there is speculation that it will, it can do so via the filing of an amicus curiae (friend of the court) by the deadline of February 28th.
The case of United States of America v. Windsor (see document below) challenges federal laws that require same-sex surviving spouses to pay an estate tax not required of spouses of same-sex marriages.
Oral arguments on the case begin on March 27th with a ruling expected in June 2013.
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