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Justice Department files Supreme Court brief challenging DOMA Section 3’s constitutionality

The U.S. Department of Justice files a brief on the merits in the U.S. v. Windsor case arguing that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  In its brief, the DOJ argues that laws pertaining to gays and lesbians should be considered by courts using the more searching heightened scrutiny standard, reflecting a February 2011 determination by President Obama and Attorney General Eric Holder to that effect.

In making its case for heightened scrutiny, the DOJ writes that “gay and lesbian people have been subject to a significant history of discrimination in [the United States].”  They also argue that sexual orientation “bears no relation to ability to participate in and contribute to society,” that sexual orientation is immutable and “a core aspect of identity,” and that “gay and lesbian people are a minority group with limited political power.”  Remarkably, the DOJ writes that “[t]he federal government, state and local governments, and private parties all have contributed to a regrettable history of discrimination against gay and lesbian people in a variety of contexts,” including employment, immigration, hate crimes, child custody and voter referenda.

When considered under heightened scrutiny, Section 3 of DOMA, the Justice Department writes in its brief, “violates the fundamental constitutional guarantee of equal protection. 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. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”

Responding to arguments made by the Bipartisan Legal Advisory Group (BLAG) in support of the law, the DOJ writes that DOMA “does not substantially further any interest in preserving ‘traditional, heterosexual’ marriage,” “creates no additional incentive for heterosexual couples to marry, procreate, or raise children together,” “cannot be justified based on an interest in preserving government resources,” and cannot be defended with the argument that it represented an “interest in proceeding with caution pending state experimentation with the definition of marriage.”

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