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GLAD Files for Summary Judgment in Pedersen

GLAD files for summary judgment in the Pedersen case, asking the district court to rule in favor of the plaintiffs without a full trial.  In a memorandum of law accompanying the motion, GLAD argues that DOMA violates the Fifth Amendment’s equal protection guarantee because it “takes the unitary class of couples married in their home states and divides it in two: those who are ‘married’ under federal law, and those whose marriages do not exist for any federal purpose.”

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.

GLAD’s motion argues that DOMA should be considered under heightened scrutiny, since it discriminates on the basis of sexual orientation, which should be considered a suspect class.  The motion argues that all four of the criteria used by the courts in determining suspect classes (a history of discrimination, ability to contribute to society, political powerless and immutability of the characteristic) weigh heavily in favor of a heightened scrutiny standard.  GLAD notes that both the Second Circuit and the Supreme Court have yet to delineate a standard of review to apply to classifications based on sexual orientation.

Nevertheless, even under rational basis scrutiny, GLAD argues, DOMA must fail, since the justifications for the law provided by Congress during its passage “are either nonsensical or just another way of saying that Congress wanted to denounce and harm those gay men and lesbians who form long-term relationships and seek to have those relationships recognized and respected through civil marriage.”

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