As we recently discussed, the Obama Administration recently filed a legal brief urging the U.S. Supreme Court to declare unconstitutional Section 3 of the Defense of Marriage Act (“DOMA”) because it is contrary to the guarantee of equal protection under the law established by the Fifth Amendment to the U.S. Constitution. Section 3 of DOMA prohibits the federal government from recognizing a same-sex marriage even if it was legally entered into under state law. The Supreme Court case, United States v. Windsor, involves a challenge by Edith Windsor to the federal government’s refusal to recognized her same-sex marriage in requiring Ms. Windsor to pay $363,053 in estate taxes after her spouse Thea Spyer died. After the Obama Administration decided to stop defending the indefensible DOMA, House Republicans, acting through the Bipartisan Legal Advisory Group (“BLAG”) have been trying to carry out the defense.





In our previous post, we evaluated the competing arguments from the Obama Administration and BLAG regarding the level of scrutiny that the Court should apply in assessing the Constitutionality of DOMA. The briefs filed by the Obama Administration and BLAG in the Windsor case on the level of scrutiny issue provide starkly contrasting visions of the extent to which the Constitution should work to ensure that gays and lesbians receive the same rights and equality as all Americans are entitled to. In today’s post, we evaluate the parties’ arguments regarding how the applicable level of scrutiny applies. Once again, the Obama Administration and BLAG provide starkly different visions of our society and Constitutional system.

At the outset, it is important to note that both entities acknowledge that this case largely turns on the question of whether the Supreme Court applies heightened or strict scrutiny, rather than just rational basis review, in assessing DOMA. The Obama Administration concedes that DOMA would survive the rational basis review that BLAG calls for. And BLAG does not seriously attempt to argue that DOMA could survive strict scrutiny.

BLAG offers two primary sets of bases upon which it attempts to justify DOMA. The first set of reasons revolves around the role of a married couple in raising children. BLAG contends that government has a legitimate interest in encouraging a structure for raising “unintended and unplanned offspring,” for children being raised by their biological parents, and for children being raised by both a mother and a father. Same sex couples cannot achieve any of those three goals, as any children they raise would be the result of significant planning, at most only one parent would be biological, and the child would not have both a mother and a father in the marriage. As such, BLAG contends that the federal government has a legitimate interest in encouraging opposite sex marriages by providing them with benefits and status not provided to same-sex couples (or to opposite sex couples who are not married).

The Obama Administration brief skillfully takes these arguments down, explaining that BLAG’s brief presents a very cramped vision of the importance of marriage that relies on outdated views regarding the ability of same-sex couples to raise children. In reality, the great weight of expert opinion in the medical, psychological, and social-welfare worlds find that children raised by a same-sex couple do just as well as those raised by opposite sex couples. In addition, BLAG presents no evidence or even argument that extending marriage rights to same sex couples somehow undermines the role that the institution of marriage has in encouraging responsible child-rearing by opposite sex couples. And, finally, many opposite couples either cannot have children (because they are too old or are infertile) or decide not to have children, yet federal law fully recognizes their right to marry. As such, BLAG’s arguments about opposite sex marriage and traditional child-rearing ring hollow, and certainly do not justify DOMA under any sort of heightened scrutiny.

BLAG’s second set of justifications for DOMA are just as unavailing. BLAG claims that DOMA is justified by the federal government’s interest in preserving federalism and in ensuring that eligibility for federal benefits is uniform throughout the country. But under any heightened level of scrutiny, these arguments fail because what DOMA did was change the traditional federal government approach to recognizing marriage. Traditionally, the federal government would recognize any marriage that was lawfully recognized under the law of the state where the couple was married. DOMA, however, rejected that traditional view and replaced it with a single definition of marriage for purposes of federal law regardless of whether a couple is validly married under state law. Such an approach runs counter to federalism principles, as it severely weakens the value of a state’s decision to recognize marriage equality. And as for national uniformity, while a single federal definition of marriage would encourage some uniformity, so did the traditional approach under which the federal government would treat equally anyone married under the laws of any particular state.

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