Obama Administration Brief Urges that DOMA be Struck Down

In a welcome move, the Obama administration has filed a brief in United States v. Windsor now before the U.S. Supreme Court that the Defense of marriage Act, a/k/a DOMA is unconstitutional under the Equal Protection Clause of the United States Constitution.  DOMA bars same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married heterosexual couples.  NBC News has details on the government's brief.  Here are highlights:

The brief was filed Friday in United States v. Windsor, a case challenging Section 3 of the Defense of Marriage Act, or DOMA, the law that legally declares marriage to be only between a man and a woman. That section allows state and federal authorities to deny benefits to same-sex couples that are commonplace for heterosexual couples, like insurance for government workers and Social Security survivors' benefits.

In its brief (.pdf), the U.S. bluntly declares: "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," said the brief, which was signed by Solicitor General Donald Verrilli, the government's chief trial lawyer. "Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional."

In a footnote, the brief mentions California's Proposition 8 and similar measures in other states as evidence that anti-gay discrimination remains a major problem.

SCOTUSblog has more details on the brief and the government's argument.  Here are excerpts:

The Obama administration, in a sweeping defense of marriage rights for same-sex couples, argued on Friday that the denial by states of those rights over the last decade is proof that discrimination against gays and lesbians still continues. The brief cited California’s flat ban on such marriages — Proposition 8 — as an example of the ongoing problem of bias against homosexuals.

In the context of the brief, the brief references to California’s Proposition 8 were subtle and fleeting, but they immediately raised the question of whether the administration was getting into position to come out directly, next week, against that voter-approved ballot measure.
 
In a separate administration brief, also filed Friday in the Windsor case, the government’s lawyers argued that their appeal challenging the constitutionality of the federal Defense of Marriage Act is properly before the Court, and thus can be decided in that case.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians. Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.” And Friday’s brief defended that approach energetically.

This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court. The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

Some observers — including one judge who was on the court panel that ruled in the case the administration has taken to the Court — have argued that, if the tougher standard is applied, not one of the state denials of marriage to same-sex couples can survive constitutionally. Such denials have come in thirty-nine states.

Here, in summary, is how U.S. Solicitor General Donald B. Verrilli, Jr., the administration’s top courtroom advocate, went about bringing Proposition 8 and the other thirty-eight states’ denials into the Windsor case:

First, among the factors that Verrilli cited in arguing for the standard were those that have led the Court, in cases involving other forms of discrimination, to adopt a “heightened scrutiny” standard: that is, whether the group seeking that kind of protection has been a target of discrimination and has been lacking in political power so that it has less or little chance of gaining protection.

Second, in finding that gays and lesbians have been, in the past and currently, the targets of discrimination and have been lacking in political power, Verrilli cited “the recent history of marriage initiatives” — the history of thirty-nine states, including California with Proposition 8, adopting bans on same-sex marriage, either by state laws or constitutional amendments.

Third, Verrilli pointed out that, at the time DOMA was passed in 1996, only three states had laws allowing only opposite-sex couples to marry. Now, thirty-nine states do, with thirty of those coming from voter-approved state constitutional amendments.

Fourth, only six states have given same-sex couples marriage rights “through the political process,” while three more have done so through state court rulings. “That is not a convincing record of political power rendering protection unnecessary,” Verrilli wrote. And, at that point, the brief dropped in a footnote, which said that, “[b]y way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriages….In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.”

The government’s brief on the Court’s jurisdiction argued that the Republican leaders of the House of Representatives, who have taken up the defense of DOMA after the Administration abandoned it, do not have a legal right under Article III to take the place of the federal government in pursuing a final Court ruling on DOMA’s validity.   But, the brief said, the Court need not reach the issue of the GOP leaders’ “standing” because the federal government is properly before the Court in the Windsor case.