Posted on January 22, 2013 at 6:41 pm by Lyle Denniston
Arguing that the federal government has the same power as state governments do to define marriage, the Republican members of the House of Representatives’ leadership told the Supreme Court on Tuesday that the 1996 Defense of Marriage Act does not attempt to exclude anyone from government benefits but seeks only to define what marriage means under federal laws and programs. It means, as the Act says, that marriage for all federal purposes is a union between one man and one woman.
Although the Supreme Court has told the House leaders (appearing before the Court as the majority of the Bipartisan Legal Advisory Group of the House) to defend their legal right to be in federal court to defend DOMA, this brief did not deal with that question. A separate brief on that point is due from BLAG on February 22, under the Court’s orders in the case of United States v. Windsor (docket 12-307). At that time, the BLAG members will be replying to a challenge to their standing in the case; that opposition will be filed on Thursday by a Court-appointed advocate, Harvard law professor Vicki C. Jackson.
The brief made a strenuous argument against raising the constitutional standard for judging laws that treat gays and lesbians less favorably. The GOP brief contended that those individuals do not need such protection. “Gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized 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 lawmakers.’”
Both President Obama and Attorney General Eric Holder, the brief noted, have decided to “stop defending and start attacking DOMA itself,” and those developments show “the remarkable political clout of the same-sex marriage movement.”
The brief went on to argue, however, that even if the Court imposes a tougher constitutional test for DOMA’s Section 3 on federal benefits, raising the test to the “heightened scrutiny” standard, DOMA can pass muster at that level, too. It can do so, according to the brief, because “in our federal system, it is surely an important interest for each sovereign to be able to address an issue as divisive and fast-moving as same-sex marriage for itself.”
The overall strategy of the brief appeared to be to closely link what Congress did in 1996 with what the overwhelming majority of states have continued to do — decide for itself on a definition of marriage, and setting that definition in its traditional mode of a union of an opposite-sex couple. That strategy appeared to be an attempt to exploit the argument that definition of something as fundamental as marriage is a matter for a sovereign entity, whether it be a state with the residual sovereignty that the Tenth Amendment guarantees or the national sovereignty that any nation-state has.
“DOMA reflected Congress’ determination that each sovereign should be able to determine for itself how to define marriage for purposes of its own law,” the brief said. “DOMA does not override or invalidate any sovereign’s decision to modify the definition of marriage, but it does preserve that prerogative for each sovereign.”
That line of argument is meant to counter the claim of DOMA’s challengers that the restriction of federal marital benefits to opposite-sex couples undermines the rights of states, like Massachusetts, to recognize same-sex marriages. The challengers contend that DOMA’s Section 3, the benefits limitation, creates two classes of unequal marriage partners: recognizing the unions of opposite-sex couples but refusing to recognize the marriages of same-sex couples. The DOMA challengers are all legally married under a state’s existing law, or are the surviving partners of a same-sex marriage after one has died.
The BLAG brief contended that, while Congress from time to time has accepted states’ definition of marriage, it “also has a long history, when it sees fit, of supplying its own definitions of marriage for various federal purposes.”
When states began in 1996, with a state court ruling in Hawaii, to experiment with changing the traditional definition of marriage, the brief said, “the federal government was under no obligation to follow suit. Congress could, and did, rationally decide to retain the traditional definition as the uniform rule for federal-law purposes. Congress could, and someday may, adopt a different approach and either incorporate varying state approaches or uniformly extend rights to same-sex couples even in states that retain the traditional definition. But under our system of government, those decisions are wisely left to Congress and the democratic process.”
The brief recited the same social and cultural reasons that have been put forth in legal filings in lower courts to justify Congress’s 1996 decision to opt for a continuing embrace of traditional marriage.