With President Obama and the majority of American voters now supporting the freedom to marry for same sex couples, LGBT activists called for the US Department of Justice to file an amicus brief in the Windsor case challenging Section 3 of the so-called Defense of Marriage Act (DOMA) before the Supreme Court hears oral arguments on March. 27.
On Friday afternoon, DOJ filed a brief saying Section 3 of DOMA should be struck down because it "inflicts a vast array of...severe harms" on married same sex couples. The DOJ has not yet filed a similar brief supporting the challenge to the constitutionality of Prop 8 in the Perry case, however, which the Supreme Court will hear on March 26.
The Justices are expected to render a decision on both cases in June.
Much more after the break.
Here's an excerpt from the comprehensive Washington Blade story:
In a 54-page legal brief, the U.S. Justice Department lays out its case for why it believes Section 3 of DOMA is unconstitutional -- noting the harm the law causes married same-sex couples and the history of discrimination against gay and lesbian people -- while arguing that DOMA should be subjected to heightened scrutiny, or a greater assumption it's unconstitutional.
"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," the brief states. "Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional."
The brief is signed by Solicitor General Donald Verrilli as well as Stuart Delery, the gay principal deputy attorney general who's litigated against DOMA in oral arguments in lower courts. The lawsuit before the Supreme Court is known as Windsor v. United States, which was filed by the American Civil Liberties Union.
The brief enumerates several benefits that are withheld from married same-sex couples under DOMA, such as the denial of certain housing benefits for service members, the lack of Social Security survivor benefits and the inability of gay Americans to sponsor their foreign-born same-sex spouses for residency in the United States. It also notes plaintiff and New York widower Edith Windsor was forced to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer.
But the Justice Department also makes the case that laws related to sexual orientation should be subjected to heightened scrutiny because gay people have been subjected to a history of discrimination, citing bias in employment and immigration as well as vulnerability to hate crimes and police harassment.
Additionally, the brief contends DOMA merits heightened scrutiny because sexual orientation bears no relation on an individual's ability to contribute to society and gays are a minority with limited political power.
"Historically, discrimination against gay and lesbian people had nothing to do with ability or performance, but rested instead on the view that they are, for example, sexual deviants, mentally ill, or immoral," the brief states. "Like gender, race,or religion, sexual orientation bears no inherent relation to a person's ability to participate in or contribute to society."
One question raised by some smart activists is whether the the Windsor case will be won because the House's BLAG lack standing to defend DOMA. Here's the Blade:
In addition to the merits brief, the Justice Department filed on the same day another brief addressing jurisdictional questions in the case. That brief responds to questions over whether the executive branch agrees DOMA is unconstitutional and whether the House Republican-led Bipartisan Legal Advisory Group has standing to participate. BLAG, following a party-line vote of 3-2, has taken up defense of DOMA in the administration's stead.
In that 38-page brief, the Justice Department contends the Supreme Court has jurisdiction, but BLAG lacks standing to seek review of lower court decisions striking down DOMA.
"BLAG is an entity located within the Legislative Branch," the brief states. "The Constitution assigns to that Branch only specifically enumerated 'legislative powers.' ... Although Congress (and the individual Houses) may create offices to assist with legislative tasks, the authority of such an office may not include the 'discretionary power to seek judicial relief' on behalf of the United States."
Also on Friday, other briefs were filed by the ACLU and BLAG in response to the jurisdictional questions in the case. In its brief, BLAG argues it can participate in the lawsuit, but the Justice Department doesn't have standing to take part.
Please also find thoughtful reporting by Scottie Thomaston at the Courage Campaign's Equality on Trial (formerly Prop 8 Trial Tracker) and by Buzzfeed's Chris Geidner.