DOMA: Irrational, Baseless Law, Merits Brief Argues

March 8, 2013

by Jeremy Leaming

It took him long enough to disown one of his more atrocious antigay actions he took as president, but Bill Clinton has finally called for the demise of the so-called Defense of Marriage Act.

In a column for The Washington Post, Clinton writes, “On March 27, DOMA will come before the Supreme Court, and the justices will decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact incompatible with the Constitution.”

There are two cases the U.S. Supreme Court will hear at the end of this month that raise constitutional issues surrounding marriage equality. In Hollingsworth v. Perry, the justices will consider whether California’s Proposition 8 subverted the equality rights of gay and lesbian couples, and in U.S. v. Windsor, the justices will weigh the constitutionality of a DOMA that bars the federal government from recognizing same-sex marriages, denying scores of federal benefits to couples who have been wed in states that recognize same-sex marriages.

The Obama administration has lodged briefs in both cases with broad calls for equality. Scores of other organizations have lodged friend-of-the-courts briefs arguing for and against marriage equality. (SCOTUSblog provides access to all those briefs here and here.)

The merits brief on behalf of Edith Windsor, the woman challenging the constitutionality of the DOMA provision, advances a resounding call for an end to federal discriminatory treatment of lesbian and gay couples.

Under DOMA the brief notes that the “federal government regards gay couples as not married even if they are married under state law.” [Nine states and the District of Columbia recognize allow same-sex couples to wed.]

“DOMA excludes married couples who are gay,” the merits brief continues, “from all the rights, privileges, and obligations that the federal government otherwise affords married couples. Ms. Windsor’s situation is representative. In addition to be being denied the ability to claim the estate tax deduction on behalf of her deceased spouse’s estate, she has also been denied the Social Security death benefit to which surviving spouses are normally entitled.”

Beyond going through all the federal benefits gay couples are denied because of DOMA it also provides a history of the creation of the discriminatory law. It notes, for instance, that DOMA “sped through Congress in large part because of the strong views many members of Congress expressed at the time about the morality of being gay. During one day’s debate, a Representative declared homosexuality ‘is based on perversion, that it is based on lust.”


The brief provides other statements from the congressional record that shows the bigotry that undergirded the law’s creation.

Windsor’s challenge to DOMA wended its way through the court system before the U.S. Court of Appeals for the Second Circuit invalidated DOMA’s Section 3 provision on the ground that it could not survive a stricter scrutiny, called “intermediate scrutiny,” meaning the government must overcome a larger hurdle in defending a law that classifies a group of people.

The Windsor merits brief argues that heightened scrutiny should be used by the Supreme Court to strike DOMA:

This Court should apply heightened scrutiny to DOMA because it discriminates on the basis of sexual orientation. Classifications based on sexual orientation implicate all of the factors to which the Court has pointed in concluding that classifications based on race, sex, illegitimacy, alienage, and national origin or ancestry demand special scrutiny. First, lesbians and gay men have been subject to a long history of discrimination. Second, a person’s sexual orientation does not affect his or her ability to contribute to society. Third, sexual orientation is an immutable and distinguishing characteristic that is a core attribute of personhood. Fourth, lesbians and gay men lack the political power to protect themselves from invidious discrimination.

(The Windsor brief notes that the high court has relied on several factors to determine whether “classifications are so much ‘more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.’” Those factors are: “(1) whether the group has suffered a history of discrimination; (2) whether the group’s members differ from other individuals in a way that bears on their ability to perform or to contribute to society; (3) whether individuals cannot, or should not be expected to, change the characteristic that defines membership in the class; and (4) whether the group lacks political power because ‘prejudice’ against the group ‘curtail[s] the operation of those political processes ordinarily to be relied upon.’”)

But even if the high court cannot bring itself to use heightened scrutiny to strike the DOMA provision, the merits brief argues it still could not survive a lesser test of constitutionality.

“Even under rationality review, DOMA, is unconstitutional because it is not rationally related to any legitimate government interest. Although rational basis review necessarily depends on the facts of each case, the Court is particularly likely to find a law irrational where it targets an unpopular or disfavored group for disparate treatment, imposes sweeping disabilities divorced from any specific factual context, or is so novel that it lies outside our ‘constitutional tradition."

And now the president who signed the blatantly discriminatory measure into law recognizes what the Windsor brief lays out – the high court should strike a law targeting lesbians and gay couples for no serious government purpose.