Academic journal article Columbia Journal of Gender and Law

Brief of 172 Members of the U.S. House of Representatives and 40 U.S. Senators as Amici Curiae in Support of Respondent Edith Schlain Windsor, Urging Affirmance on the Merits

Academic journal article Columbia Journal of Gender and Law

Brief of 172 Members of the U.S. House of Representatives and 40 U.S. Senators as Amici Curiae in Support of Respondent Edith Schlain Windsor, Urging Affirmance on the Merits

Article excerpt

II. DOMA Section 3 is unconstitutional.

Justice Harlan famously said in his dissent in Plessy v. Ferguson that "the Constitution 'neither knows nor tolerates classes among citizens.'" 163 U.S. 537, 559 (1896) (Harlan, J. dissenting). That unassailable principle, which lies at the very heart of this Nation's character, dictates the outcome here: DOMA is constitutionally impermissible "class legislation" (Romer, 517 U.S. at 635 (quoting Civil Rights Cases, 109 U.S. 3, 24 (1883))), plain and simple.

Virtually every feature of DOMA distinguishes it from routine "statutory definitions and other line-drawing exercises." BLAG Br. 29. It was enacted without any genuine effort to discern a connection to a legitimate federal interest. It singles out married same-sex couples by one trait alone and denies them protection across the board. And a purpose for its enactment, clearly stated in the House Report and during floor debates, was moral disapproval of the minority group that it burdens. None of the arguments advanced in DOMA's defense comes remotely close to justifying it. Thus, even if the Court does not apply heightened review, DOMA must be struck down. "It is not within our constitutional tradition to enact laws of this sort." Romer, 517 U.S. at 633.

A. DOMA is not the rational result of impartial lawmaking.

In its consideration of DOMA, Congress failed to engage in the type of impartial, fact-based reflection that serves as a bulwark against unconstitutional discrimination. In fact, Congress deliberately chose to forgo any examination of how DOMA would affect the many federal laws that take marital status into account, the families that it hurts, or the federal government's long history of respecting the significant variability in state marriage laws for purposes of federal law.

1.a. DOMA affects thousands of Federal statutes and regulatory materials covering virtually every subject within the federal sphere, including Social Security, housing, nutrition, veterans' and military benefits, employment, immigration, and many other areas. Yet Congress did not study a single affected law or program or refer the bill to committees with jurisdiction over those and many other relevant subjects. As the dissenting views in the House Report stated, DOMA's "consequences [were] not adequately analyzed," and because the "committees of the Congress [did not] hold[] hearings on the various aspects of" the law, the majority was able to "use ignorance as an excuse for haste." House Report at 42.

In fact, Congress did not even know which, or how many, federal laws were affected when it voted on the bill. It was not until nearly two months after DOMA passed the House, and just five days before it passed the Senate, that House Judiciary Committee Chairman Henry Hyde even asked the GAO to analyze DOMA's effects on federal laws and programs. See Defense of Marriage Act, B-275860, GAO/OGC97-16 (Jan. 31, 1997), at 1. (9) And Congress did not wait for GAO's answer, which came nearly four months after DOMA was signed into law. Ibid. The Congressional Budget Office did not release an estimate of DOMA's potential budgetary impact until June 2004--nearly eight years later.

b. Similarly unexamined were sweeping and unsupported assertions that denying federal recognition to same-sex couples would serve the welfare of children. The House Report claimed that because of "the possibility of begetting children inherent in heterosexual unions," the federal government has an interest in promoting marriage as a means of "encouraging [different-sex] citizens to come together in a committed relationship." House Report at 14. As discussed more fully below, that misstates Congress's interest in marriage. Moreover, DOMA's proponents, then and now, have failed to explain how the federal government's refusal to recognize the marriages of committed same-sex couples in any way encourages different-sex couples to marry or affects their parenting behavior. …

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