Box Turtle Bulletin

Obama Administration Files Brief Asking SCOTUS To Strike Down DOMA Section 3

Last Friday, President Obama’s Solicitor General, Donald Verrilli, filed this brief in United States v. Windsor, urging the Supreme Court to strike down Section 3 of the Defense of Marriage Act as unconstitutional. Section 3 is the portion of the law which bars the federal government from recognizing same-sex marriages which are lawfully performed by the states.

The brief argues that the case before the Supreme Court deserves heightened scrutiny due to the long history of discrimination that gays and lesbians have experienced throughout history. This argument is in keeping with the Justice Department’s announcement in 2011 that it would no longer actively defend DOMA in Federal Court. After laying out the reasons for examining the law under heightened scrutiny, Verrilli contends that DOMA fails that test.

But in an interesting twist, Verrilli also recognized that the Court has long been reluctant to apply heightened scrutiny. If the Court says that the proper standard for evaluating DOMA is the “rational basis” standard — which is highly deferential to Congress’ decision-making — then the Defense of Marriage Act would survive constitutional muster. But Verrilli also contends that the U.S. Supreme Court, in striking down state sodomy laws in 2003’s Lawrence v. Texas, the court already chose a standard that goes above “rational basis,” Justice Sandra Day O’Connor called “a more searching form of rational basis.” And under this view, DOMA would fail the test:

To the extent sexual orientation may be considered to fall short in some dimension [to apply  heightened scrutiny test], 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.”

Section 3 would fail to satisfy any such analysis,largely for the reasons it fails heightened scrutiny.Like the law struck down in Romer (Romer v. Evans, which struck down a Colorado constitutional amendment prohibiting gays and lesbians from seeking anti-discrimination protections in state and local laws), Section 3 is “at once too narrow and too broad.” It imposes a “broad and undifferentiated disability” on the same narrow class of people at issue in Romer — gay and lesbian people — by denying effect to their state-recognized marital relationships across the entire spectrum of federal law. And the asserted rationales are sufficiently “far removed from” the effect of the law — particularly given its breadth — that they should not be credited as valid justifications.

The brief concludes:

 BLAG (Br. 58-59) 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.