The Justice Department’s legal brief says, “Moral opposition to homosexuality, though it may reflect deeply held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people.”
On Friday, the Obama Administration filed the first in a series of briefs urging the Supreme Court to “strike down” the federal Defense Of Marriage Act (DOMA), arguing that the law is unconstitutional based on the fact that it violates “the fundamental guarantee of equal protection,” guaranteed under the US Constitution. DOMA was passed by Congress in 1996, and for federal purposes defines marriage as “only between one man and one woman.” As CNN explains, this means that, “federal tax, Social Security, pension, and bankruptcy benefits, and family medical leave protections — do not apply to gay and lesbian couples,” even those whose marriages are recognized in the numerous states who have legalized same-sex marriage.
The Justice Department’s legal brief, filed by Solicitor General Donald Verrilli asserts that Section 3 of the federal law unconstitutionally prohibits the marriage of same-sex couples, and should be overturned. The brief says,
The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.
The brief also points out that historically, the LGBT community has suffered discrimination based on their sexual orientation, and as the Huffington Post points out, the court needs to focus on Section 3 with a “higher level of rational-basis review.” The brief points out that this “increased consideration” would be justified so as to “guard against giving effect to a desire to harm an ‘unpopular group.'”
Verrilli finishes the brief by addressing the argument that has been made by the House GOP Bipartisan Legal Advisory Group, which asserts that the question of the legality of same-sex marriage is not for the courts to decide, but instead should be determined by the “democratic process.” The brief argues,
This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.
The Supreme Court will begin hearing oral arguments concerning both DOMA and California’s Proposition 8 next month.