Questions surrounding whether the Obama Administration would meet the deadline to file a friend of the court brief urging the Supreme Court to strike down DOMA have been answered. Last night the Administration filed a brief, urging the court to do the right thing.
Key points in the filing are below.
Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. 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 administration has not weighed in on the challenge to California's Proposition 8. The deadline for doing so is February 28. I have hope that they will file in this case as well, but I am very pleased they took a formal stand with the court against DOMA. To the extent that these briefs being filed on both sides will have the power to sway the court's decision, I like having the President on our side. I would like to think that the voice of the President of the United States carries a bit more weight than the various hate groups ranting against equality.
To the extent sexual orientation may be considered to fall short in some dimension [to have heightened scrutiny applied], the history of discrimination and the absence of relation to one's capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an "unpopular group."
BLAG makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. 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.