The Obama administration is following through on its relatively new-found support of gay marriage. On Friday, the administration filed a legal brief with the Justice Department that urges the Supreme Court to strike down a key part of the Defense of Marriage Act.
The brief formally asks the court to declare unconstitutional a specific part of DOMA called Section 3. That’s the part that bars recognition of same-sex marriages for purposes of federal benefits such as income taxes or federal employee benefits. The brief points out that there are more than 1,000 federal statues and programs that come into play depending on a person’s marital status.
The Obama administration notes that some of these couples are legally married so targeting them is “a harsh form of discrimination that bears no relation to their ability to contribute to society.” Moreover, it violates the constitutional guarantee of equal protection, the brief states.
An article in Buzzfeed explains that the administration’s brief argues for heightened scrutiny of the law because it singles out gay people.
The administration’s filing to the Supreme Court is not exactly a surprise. In Obama’s inaugural address last month, he stood by his position in favor of same-sex marriage:
“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well.”
The primary challenge to the administration’s position comes from House Republicans through the Bipartisan Legal Advisory Group (BLAG). That group filed its own brief this week that advocates settling the issue through the democratic process, not through the courts.
The Obama administration’s brief disputes that position, stating several reasons why letting voters decide on the legal status of same-sex marriage is inappropriate. It sites the long history of discrimination gays and lesbians have faced; that sexual orientation bears no relation to the ability to contribute to society; and that sexual orientation is a core part of identity with broad scientific evidence that it is not a voluntary choice. Finally, the brief states:
“Fourth, gay and lesbian people are a minority group with limited political power. Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action.”
In its article about the administration’s brief, Politico points out that there are concessions to the other side. The brief acknowledges that “DOMA could pass a so-called ‘rational basis’ test applied to laws that don’t veer into sensitive issues like race or gender. The Justice Department also says the law may not have been the product of ‘hostile animus’ against gay people.”
Politico also has a link to the full-text of the brief, if you want to read it for yourself.