DOMA's last gasp? - House GOP files brief in defense of discriminatory law
 

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posted Friday, January 25, 2013 - Volume 41 Issue 4

DOMA's last gasp? - House GOP files brief in defense of discriminatory law
by Mike Andrew - SGN Staff Writer

The so-called Bipartisan Legal Advisory Group (BLAG), representing the House Republican leadership, filed its brief defending DOMA with the Supreme Court on January 22.

Attorneys for Edie Windsor, the plaintiff challenging DOMA in Windsor v. U.S.A., will reply to BLAG's brief in February. Her lawyers will be joined by U.S. Department of Justice attorneys, who will also argue that DOMA is unconstitutional.

The Supreme Court justices will hear oral arguments in the case on March 27 - the day after the court hears arguments in California's Prop 8 case.

BLAG's 76-page brief argues that historically, 'every state and the federal government defined marriage as the legal union of a woman and a man.'

A NOVEL ARGUMENT
In a rather astonishing departure from typical anti-equality rhetoric, BLAG argues that the historical definition of marriage must be upheld because unmarried opposite-sex couples can produce 'unintended and unplanned offspring.'

'There is a unique relationship between marriage and procreation that stems from marriage's origins as a means to address the tendency of opposite-sex relationships to produce unintended and unplanned offspring,' BLAG attorneys write in their brief.

'There is nothing irrational about declining to extend marriage to same-sex relationships that, whatever their other similarities to opposite-sex relationships, simply do not share that same tendency. Congress likewise could rationally decide to foster relationships in which children are raised by both of their biological parents.'

Congress also has the authority to legislate 'national uniformity' in the provision of federal benefits based on marriage, rather than leaving that to the states, BLAG says.

Finally, BLAG's brief argues that laws classifying people based on sexual orientation should not be subject to 'heightened scrutiny' under the Constitution's equal-protection guarantees, because 'the histories of discrimination based on race, ethnicity, sex, and legitimacy are different.'

ASSAILS OBAMA POSITION
The Republican brief also denounces the Obama administration for 'attacking' DOMA as unconstitutional.

'Although the Holder Letter [stating that the Obama administration believed DOMA was unconstitutional] had said only that the Department would 'cease defense' of DOMA Section 3, the Department did not merely bow out of DOMA litigation,' the brief charges.

'Instead, it affirmatively assailed DOMA in court - arguing that Section 3 violates equal protection and urging courts to render judgment in favor of plaintiffs challenging the law even in Circuits in which rational basis was binding circuit law. The Department even went so far as to accuse the Congress that enacted DOMA - many of whose Members still serve - of being motivated by 'animus.'

PROP 8 BRIEF ALSO FILED
On the same day, supporters of Prop 8 also filed their opening brief with the Supreme Court.

The case brought by same-sex couples seeking to marry in California is unlike past LGBT rights cases in which the court struck down anti-Gay restrictions, Prop 8 supporters asserted.

It is also unlike Loving v. Virginia, in which the court struck down bans on interracial marriage, they argue, because there is no historic reason 'for invalidating marriage as it has existed in California for virtually all of its history, as it was universally understood throughout this Nation (and the world) until just the last decade, and as it continues to be defined in the overwhelming majority of States and Nations.'

Arguments in Hollingsworth v. Perry, the Prop 8 case, will be heard on March 26.



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