March 22, 2013
By Scottie Thomaston
The final filing from House Republicans, via the Bipartisan Legal Advisory Group (BLAG), on the constitutionality of Section 3 of DOMA was filed this week. The brief is especially noteworthy because BLAG’s lawyers go to great lengths to urge the Supreme Court not to apply a heightened level of scrutiny, but to instead apply the most deferential form of rational basis review. This form of rational basis review, they write, has only led to the Court striking down one statute as unconstitutional. BLAG says that Windsor’s attorneys “distort” the way rational basis is actually applied, in order to make it appear less deferential to legislative prerogatives than it actually is.
They also attempt to dissuade the Court from considering that laws classifying people on the basis of sexual orientation are “suspect”:
Nor is there any basis for this Court to make sexual orientation the first new suspect class in forty years. Treating a group as a suspect class for equal protection purposes is, at bottom, a determination that by dint of a long history of official disenfranchisement or other obstacle, a group cannot protect its interests through the ordinary political processes. But gays and lesbians have made more progress through the ordinary political processes more quickly than any other group in recent memory, both on the issue of marriage and more generally. The impressive array of amici supporting affirmance provides powerful testimony to the political clout of a group that has been remarkably and increasingly successful in accomplishing its goals through the political process.
Along with noting the long list of amici, BLAG points to the recently-passed civil unions law in Colorado as a sign of progress. And as they did in their opening brief, they suggest again that the “political process” is really the best way to handle the issue of same-sex marriage:
This Court should decline the invitation to cut this vital debate short, uphold DOMA as constitutional, and permit the citizens of this country to continue participating in working through this important issue.
The brief does seem to make a few concessions; in a footnote, they concede that gay couples marry for the same reasons as straight couples (in defending their argument about marriage penalties making people less likely to marry.)
They again suggest that a child should be raised by his or her biological, opposite-sex parents:
DOMA’s opponents challenge as irrational the long-held cultural judgment that a child’s biological parents are, other things being equal, the child’s natural and most suitable guardians. Ms. Windsor even claims (at 45) that current law does not recognize this principle. That is mistaken: Every state recognizes that a child ordinarily should be raised by his or her biological mother and father, if they are able and willing.
The Court, they write, should only investigate the law for animus after they’ve exhausted all possible rational bases, instead of looking for animus separately:
Thus, while the Court has long recognized that discrimination purely for its own sake is not rational, under the established approach, constitutional review does not require a separate judicial inquiry into whether a law was motivated by “animus.” Instead, only
after the search for other rational bases for a law has been exhausted will the Court conclude that impermissible animus is the sole remaining explanation. Animus is thus a conclusion drawn from the unsuccessful search for rational bases, not a separate inquiry. Since the House has identified numerous rational bases for DOMA, the inquiry ends there.
Under this view, as long as BLAG can identify a rationality for DONA, the Court can’t decide whether or not DOMA was enacted simply out of animosity toward gays and lesbians.
Another concession BLAG makes is that the classification involved in the passage of DOMA is a classification based on sexual orientation. At certain points, they had previously seemed to be suggesting that it’s not orientation, but rather conduct that certain people wish to engage in. But they write here that:
All parties to this case agree that Section 3 should be analyzed as a sexual-orientation classification, and DOJ and Ms. Windsor argue thatsuch classifications should be subjected to heightened scrutiny.
They, of course, still suggest that the four qualifications typical for “suspect classes” don’t match sexual orientation, so they, again, urge the Court not to adopt a higher level of judicial scrutiny or consider sexual orientation a suspect classification.
They do, finally, suggest that Section 3 of DOMA would pass even a heightened level of judicial scrutiny, because of “dual sovereignty” considerations. In their opening brief, they had only dedicated a footnote to an argument that Section 3 of DOMA passes heightened scrutiny.
They close their brief with a plea to the Justices to allow the political process to work out any issues related to sexual orientation discrimination. They argue that debate is healthy and allows people to understand each other.
Next Wednesday, March 27, the Court hears arguments in the case, United States v. Windsor.
h/t Kathleen for this filing