February 22, 2013
By Scottie Thomaston
The United States Department of Justice has filed its brief on the merits in United States v. Windsor attacking the constitutionality of Section 3 of the Defense of Marriage Act. This is the first and only chance for the Justice Department to make its case that Section 3 of DOMA violates equal protection principles in the Fifth Amendment.
In today’s filing, the Justice Department asserts that laws impacting gays and lesbians warrant heightened scrutiny:
This Court has understandably reserved the application of heightened constitutional scrutiny to a small number of classifications. But the Court has yet to determine whether classifications based on sexual orientation qualify. Under the factors articulated by this Court, such classifications warrant heightened scrutiny.
Back in February 2011, the Justice Department sent a letter to Congress notifying them that the president has determined that laws classifying people on the basis of their sexual orientation warrant a heightened level of judicial scrutiny, and that Section 3 of DOMA fails that test; therefore, the Justice Department was to withdraw its defense of the law and allow Congress the opportunity to step in to defend it.
Shortly thereafter, the Justice Department filed a brief attacking the law’s constitutionality, rather than simply declining to defend it. Since then, they’ve been involved in several cases in the lower federal courts urging them to consider gays and lesbians a “suspect class” and to apply a heightened level of judicial scrutiny to strike down Section 3 of DOMA.
We will have more updates…
Here is the filing, h/t Kathleen as always: