January 22, 2013
By Scottie Thomaston
The Bipartisan Legal Advisory Group (BLAG) who is representing House Republicans defending Section 3 of DOMA have filed their opening brief at the Supreme Court in United States v. Windsor. The brief is here via SCOTUSBlog. We will have it on Scribd soon.
And we will have updates as well.
BLAG concedes right off that states are generally free to define marriage how they want and the federal government usually follows along, but BLAG says they don’t always follow along:
Historically, the federal government often has found it convenient to accept the marital determinations made by the several states (which for the most part have varied only in the particulars) for purposes of federal law—just as the states typically recognize marriages licensed by other states for purposes of their own law. But Congress also has a long history, when it sees fit, of supplying its own definitions of marriage for various federal purposes.
Much like the Prop 8 proponents’ brief linked above, BLAG argues that marriage is an institution designed to prevent opposite sex couples from harming society with unplanned pregnancies outside of marriage:
Congress recognized the basic biological fact that only a man and a woman can beget a child together without advance planning, which means that opposite-sex couples have a unique tendency to produce unplanned and unintended offspring. Congress sought to encourage the raising of such children by both their biological parents in a stable family structure.
BLAG accuses the Justice Department of accusing Congressmembers of being motivated by animus toward gays and lesbians:
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.”
Their main argument, summarized, is here:
Congress could, and someday may, adopt a different approach and either incorporate varying state approaches or uniformly extend rights to same-sex couples even in states that retain the traditional definition. But under our system of government those decisions are wisely left to Congress and the democratic process.
In considering DOMA’s constitutionality, the Court should apply rational basis review as it previously has done when considering classifications on the basis of sexual orientation. And under that deferential standard, there is little question that DOMA rationally furthers multiple legitimate government interests.
And a bit more on procreation:
And wholly apart from these unique federal interests that fully justify DOMA, Congress could rationally decide to retain the traditional definition for the same basic reasons that states adopted the traditional definition in the first place and that many continue to retain it: 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. 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.
BLAG argues that DOMA doesn’t classify on the basis of sexual orientation at all:
By its terms, DOMA does not classify based on a married couple’s sexual orientation. Rather, DOMA classifies based on whether a marriage is (i) a legal union (ii) between two persons (iii) of the opposite sex. A marriage between a man and a woman would fall within DOMA’s definition even if one or both spouses were homosexual. Similarly, the marriage of two men would fall outside the definition even if both were heterosexual. There is no question, however, that DOMA has a disproportionate impact on individuals with a homosexual orientation.
In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characterizing such a group as politically powerless would be wholly inconsistent with this Court’s admonition that a class should not be regarded as suspect when the group has some “ability to attract the attention of the lawmakers.
Filing below, via Scribd (h/t to Kathleen for this).
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