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DOJ Sides with Edie Windsor

The U.S. Justice Department files a brief with the district court in Edie Windsor’s case, arguing that DOMA is unconstitutional and the court should rule in Windsor’s favor.  In the introduction to its brief, the DOJ writes plainly, “Section 3 of DOMA unconstitutionally discriminates. Section 3 treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons.”

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.

Significantly, the DOJ argues in its brief that laws affecting gays and lesbians should be considered using a heightened scrutiny standard of review, pointing out the federal government’s “significant and regrettable role in the history of discrimination against gay and lesbian individuals.”  Not only does the Justice Department state that the Supreme Court has not issued any decision on the level of constitutional scrutiny gays and lesbians deserve, it also points out that the Second Circuit, which the Southern District of New York is a part of, has not ruled on the level of scrutiny to apply to laws that classify based on sexual orientation.

In fact, the Second Circuit’s lack of precedent sets it apart from many of the other circuits, in which some decision on scrutiny has already been made (albeit, as the DOJ points out, often based on case law which has been undermined by later Supreme Court precedent).  For this reason, the district court in Windsor is free to apply heightened scrutiny to Edie Windsor’s case if it should choose to do so.

In its brief, the DOJ challenges BLAG’s claims that DOMA furthers a governmental interest in responsible procreation, instead arguing that the congressional record during the passage of the bill “evidences the kind of animus and stereotype-based thinking that the Equal Protection Clause is designed to guard against.”

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