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BLAG files opening Supreme Court brief in Windsor

The House Bipartisan Legal Advisory Group (BLAG) files a brief with the Supreme Court arguing that DOMA is constitutional and that the Court should uphold the law.  BLAG describes the issue as a “very narrow” one and writes, “the question here is whether the federal government retains the same latitude to choose a definition for federal-law purposes, or whether instead it must borrow state-law definitions as its own, recognizing same-sex marriages of U.S. citizens residing in Massachusetts (because Massachusetts does) but not same-sex relationships of U.S. citizens residing in Virginia (because Virginia does not).”

In its brief, BLAG argues that the high court should consider DOMA under the most lenient form of judicial scrutiny, known as rational basis review.  “Creating new suspect classes [which would merit more searching scrutiny] takes issues away from the democratic process,” they write, “and this Court has wisely refrained from recognizing new suspect classes over the last four decades.”

In support of its argument regarding rational basis review, BLAG asserts that gays and lesbians do not need increased protection under the laws because they do not exhibit political powerlessness, one of the Court’s metrics for determining the proper level of scrutiny, writing:

“In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characterizing such a group as politically powerless would be wholly inconsistent with this Court’s admonition that a class should not be regarded as suspect when the group has some ‘ability to attract the attention of the lawmakers.'”

Viewed through the lens of rational basis review, BLAG argues, DOMA survives constitutional scrutiny because it recognizes that “[t]here is a unique relationship between marriage and procreation that stems from marriage’s origins as a means to address the tendency of opposite-sex relationships to produce unintended and unplanned offspring.”

Furthermore, BLAG writes that Congress’s decision to pass DOMA rationally furthered the following governmental interests: 1)  preserving each state’s ability to define marriage on its own terms, 2) ensuring national uniformity in federal benefits, 3) conserving scarce government resources and 4) proceeding with caution.

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