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Citizens United files amicus briefs in Prop 8, DOMA cases, asks Court to overturn lower courts and one of its landmark civil rights precedents

DOMA trials Prop 8 trial

By Scottie Thomaston

Citizen United filed amicus briefs in United States v. Windsor and Hollingsworth v. Perry, challenging Section 3 of the Defense of Marriage Act and California’s Proposition 8, respectively. Citing heir briefs call for the overruling of the appeals and district court decisions in Perry and in Windsor, the overruling of a landmark civil rights decision by the Supreme Court.

Challenges to the Defense of Marriage Act are being brought in federal court and they allege that Section 3 of DOMA violates the equal protection principles of the 5th Amendment. The challenge to Proposition 8 is an alleged violation of the Equal Protection Clause of the 14th Amendment. The 14th Amendment applies only to the states while the 5th Amendment applies to Washington DC and the federal government.

More below the fold…

There is no “equal protection clause” written into the 5th Amendment but the amendment’s Due Process Clause mirrors the one found in the 14th. In the landmark civil rights cases Bolling v. Sharpe and Brown v. Board of Education (decided the same day) the Supreme Court struck down public school segregation in the states and in Washington DC.

In Bolling v. Sharpe, the Court decided that even though there is not explicitly an “equal protection clause” in the 5th Amendment that applies to the federal government, “equal protection” and “due process” are not mutually exclusive:

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

And the Court decided that if the states can’t segregate by race, it would be “unthinkable” to allow the federal government to do it:

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. [n5] We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.

The decision prevents the federal government from violating the equal protection of the laws. Since the Defense of Marriage Act is a federal law implementing a federal definition, it is being challenged under the 5th Amendment and the decision in Bolling v. Sharpe plays an important (and thus far unchallenged) role in the litigation. (Other lawsuits in other contexts have been brought alleging violations of 5th Amendment equal protection principles.)

Citizens United’s brief attacks that landmark decision and ultimately asks the Court to overrule it and the line of cases following from it:

[][T]he decisions of the courts below are grounded in a judicial fiction which should be recognized, admitted, and repudiated. By its own rules of construction of the Constitution, there is no legitimate basis for this Court to add an “equal protection component” to the Due Process Clause of the Fifth Amendment. Stripped of that mythical component, the due process guarantee imposes no equal protection limit upon Congress’s authority to enact DOMA Section 3. It is past time for this Court to bring to an end the line of atextual cases begun with Bolling v. Sharpe in 1954, and to place itself back under the authority of the Constitution as it is written.

They suggest that the line of cases allow judges to exercise legislative power:

Clothed and emboldened by this Court’s procrustean precedents that substitute judicially devised tests for the plain language of the Due Process Clause, both courts below have, as Circuit Court Judge Staub observed, “expand[ed] a constitutionally guaranteed right [by] substitut[ing] for the crucial …words of [the due process] guarantee []other … words, more … flexible and … less restricted in meaning.” By failing to honor the constitutional text, both courts issued opinions masquerading as the exercise of judicial power, whereas in reality they were exercising legislative power vested by the Constitution in Congress alone.

They suggest that while the Court’s precedents suggest equal protection and due process are the same, the Constitution’s text suggests otherwise:

Both opinions of the courts below are based upon the assumption that the “equal protection component” of the Fifth Amendment is identical to the Equal Protection Clause of the Fourteenth Amendment. There is ample support for this claim in this Court’s precedents. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995). This position would be unremarkable if supported by the constitutional text, but it is not.

And to the Court’s reasoning that it would be “unthinkable” to leave segregation intact in Washington DC:

Until May 17, 1954, the day upon which this Court struck down “racially segregated public schools” in the States under the equal protection guarantee of the Fourteenth Amendment, it was generally understood that the due process guarantee of the Fifth Amendment did not have an equal protection component. As this Court observed in Adarand, “[t]hrough the 1940’s, this Court had routinely taken the view … that, ‘unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.’” Id. at 213. However, in Bolling v. Sharpe, 347 U.S. 497 (1954), this Court shoehorned equal protection into the due process text by sheer will, declaring “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” Id. at 500 (emphasis added). See also Adarand, 515 U.S. at 215-16.

To the contrary, it was and is eminently “thinkable” that the Reconstruction Congress, led by abolitionist Republicans, would propose an amendment to the Constitution that would increase the powers of the federal government at the expense of the States.

And then the brief compares the Windsor case to Lochner v. New York (a now-discredited case that represented a movement by the Supreme Court to strike down economic legislation based on the Court’s view of its propriety):

From 1905 through the mid-1930’s, however, the courts rejected this understanding [that there is no substantive due process right], extending due process protection to certain common law economic rights, regardless of whether those rights were afforded judicial process before being denied. See, e.g., Lochner v. New York, 198 U.S. 45 (1905) and West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

The brief says this case is similar to the Lochner line of cases and the Court should not legislate and should instead decide that Section 3 of DOMA is unconstitutional and overturn the Second Circuit:

While there may be arguments Ms. Windsor and the Obama Administration might want to raise to support their view that limiting certain tax benefits to only persons within a traditional marriage relationship has no social utility, such arguments are properly addressed to Congress, not the Courts. The Fifth Amendment’s Due Process Clause neither contains an “equal protection component” nor, by the plain meaning of the words of its text, does it elevate this Court over Congress in determining the degree of need of any particular means to carry out constitutionally permissible federal purposes.

In other words, Citizens United believes there is no need at all to determine whether Section 3 of DOMA violates equal protection principles. They suggest in their argument that the only inquiry is whether it’s a “necessary and proper” statute.

h/t Kathleen for these filings

Citizens United’s Windsor brief:

Windsor: Amicus Brief of Citizens United's National Committee for Family, Faith and Prayer, et al. by EqualityCaseFiles

Citizen United’s Perry brief:

Perry: Amicus Brief of Citizens United's National Committee for Family, Faith and Prayer, et al. by EqualityCaseFiles


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