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BLAG Files a Motion to Intervene and Defend DOMA in Golinski Case

The Bipartisan Legal Advisory Group of the U.S. House of Representatives files a brief in district court seeking to intervene in the Golinski suit in defense of DOMA.  BLAG is composed of the House’s Democratic and Republican leadership, and is responsible for overseeing the actions of the House Office of General Counsel.  Regarding DOMA, BLAG votes on party lines 3-2 to defend the law.

In the brief, BLAG argues that the more deferential rational basis scrutiny test should be used when considering DOMA’s constitutionality, and not the stricter heightened scrutiny standard.  When a court considers an equal protection challenge to a law that applies certain rules to specific groups of people, that court must decide the level of constitutional scrutiny it will apply.  Essentially, the question before the court when it comes to scrutiny is whether or not a law should be looked at deferentially, as though it is likely to be constitutional, or whether it should be considered critically, as though it is likely to be unconstitutional.

As in other DOMA cases, BLAG makes the argument that the law was passed with the intention of encouraging responsible procreation, alleging that “the experience of a child raised by a man and a woman may differ from that of a child raised by same-sex caregivers.”

Writing on behalf of BLAG in the brief, attorney Paul Clement argues that “[u]nlike traditional marriage, same-sex marriage, by any objective measure, is not deeply rooted in American law and history — indeed, it has scarcely any roots at all. Although the landscape has changed somewhat in the last 15 years, … when Congress enacted DOMA in 1996, not one of the 50 states permitted same-sex marriage, and no American court had discovered a state or federal constitutional right to same-sex marriage.”

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