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200+ Members of Congress ask Supeme Court to strike down Section 3 of DOMA

DOMA trials Windsor

By Scottie Thomaston

Edith Windsor
Attribution: Metro Weekly
Edith Windsor

UPDATE: 1:18PM ET: The filing is here.

Chris Geidner at Buzzfeed is reporting that 212 members of Congress have signed on to an amicus brief opposing Section 3 of the Defense of Marriage Act. (Today, amicus briefs in support of Edith Windsor or the Solicitor General are due.) The list is extensive:

Senate Majority Leader Harry Reid, House Minority Leader Nancy Pelosi and 210 other Democratic members of Congress urged the Supreme Court Friday to strike down the federal definition of marriage contained in the Defense of Marriage Act.

Among those urging the court to act were the House and Senate Democratic leadership, all seven out LGBT members of Congress and some members of Congress who voted for DOMA in 1996.

The brief argues that heightened judicial scrutiny is required; this was the Solicitor General’s argument and is also a point Edith Windsor’s lawyers make. Certain classifications made by laws appear to be “suspect” because there would be no real legislative goal met by classifying certain people into groups, so the inference is those classifications are based simply on the desire to discriminate. Those classifications receive more judicial scrutiny and suspicion in order for the Court to make sure equal protection principles are met. Instead of a situation in which the person challenging the law has to go on the offensive and attack every perceived basis of the law as irrational, heightened judicial scrutiny requires those defending the classification to show the law is substantially related to an important government objective.

The brief says this on the subject:

We agree that heightened review is appropriate here, and that DOMA must be struck down under that standard. We offer our unique perspective on why gay men and lesbians lack the meaningful political power that some (including BLAG) have argued might justify denying heightened judicial scrutiny.

But they also argue that were the Court to decide they would only apply rational basis review (in which the law has to simply be rationally related to a legitimate interest, and the law’s challengers have to prove that it isn’t), the law fails even that test:

We also believe that DOMA must fail even if it does not trigger heightened review. Virtually every aspect of DOMA and its legislative history—the lack of objective, rational fact-finding to connect the exclusion of married same-sex couples to a legitimate federal interest; the sweeping exclusion of gay men and lesbians based on a single identifiable trait; and the open desire of some to express disapproval of that minority group—distinguishes it from routine Acts of Congress. None of the arguments advanced in its defense is sufficient.

This is a slight difference from the Solicitor General’s position. He isn’t challenging the law under rational basis review, believing that’s not the appropriate standard and suggesting that there could conceivably be rational reasons for it. But with some of the members of Congress who actually voted for it now suggesting it isn’t even rational, it shows how much the government has shifted on the question of anti-LGBT discrimination.

EqualityOnTrial will have the brief and probably more analysis later today…

Here is the filing; h/t Kathleen as always:

Windsor: Amicus Brief of Members of Congress by EqualityCaseFiles


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