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

Jim Burroway

February 25th, 2013

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.

Fritz Keppler

February 25th, 2013

Not being a lawyer, I’m curious about one aspect of the current cases before the Supreme Court compared with Loving vs. Virginia. To me, the arguments against interracial marriage back then are tediously similar to those against same-sex marriage. I was wondering, back in the 1960’s, if there was an explicit religious exemption permitting churches which objected to solemnizing the sin of miscegenation (as it was then called), or was it simply understood that a church could do what it wanted. And may a church with such an objection still have a legal standing in refusing the marriage? (I realize that such churches are subject to societal disapproval of such a stand, but I’m referring to the law.)

Jim Hlavac

February 25th, 2013

The Democrats and the president had ample opportunity to repeal the entirety of DOMA during their control of congress in the first 2 years of the current administration. Not only did they not do so, but Obama is on record during his run for office saying he was not for gay marriage. Then he said it was a state matter — which from a guy who thinks everything is a federal matter is funny in itself. Now, he’s merely saying the government is not going to defend the law, but, well, if it stands, OK, I guess. Still, now that gay folks’ court cases have pushed the president into the corner, and now he decides to evolve on the issue, is hardly cause for me to jump up and down with glee he’s on my side. Sure, he wants my vote and my money, but instead of acting himself, he passed the buck to the Supreme Court, to put distance between him and the issue. Oh please, we’re a political football to this man, and so many gays now are “ooh ooh, he’s against DOMA!” He’s no such thing.

Meanwhile, I don’t want Section 3 overturned by a court — I want every last jot and tittle of this law repealed — and alas, the president did not lead, but followed, weakly, too little, too late.


February 25th, 2013

I’d rather have Section 3 overturned by the Supreme Court — that’s final. If the law is repealed, another one can always be passed again.


February 25th, 2013

I wish they were asking for heightened scrutiny in that brief. Why not? By “reluctant”, does that mean the court explicitly out-ruled heightened or they just avoided it?


February 26th, 2013

They are asking for heightened scrutiny. But they are saying if the Court does not think heightened scrutiny is appropriate, DOMA should fail under a more searching rational review test. This is called arguing in the alternative, where lawyers argue a case under several premises.

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