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

Columbia Journal of Gender and Law, Spring 2015 | Go to article overview

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


No. 12-307

In the Supreme Court of the United States United States of America, Petitioner,

v.

Edith Schlain Windsor and Bipartisan Legal Advisory Group of the United States House of Representatives, Respondents.

On Writ of Certiorari to the United States Court of Appeals for the Second Circuit

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

Heather C. Sawyer

House Committee on

the Judiciary

Minority Counsel to

Ranking Members

John Conyers, Jr.

and Jerrold Nadler

B-336 Rayburn Bldg.

Washington, DC 20515

(202) 225-6906

Miriam R. Nemetz

Counsel of Record

Richard B. Katskee

Kathleen Connery Dawe

Michael B. Kimberly

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

mnemetz@mayerbrown.com

Counsel for Amici Curiae

A complete list of the 172 Members of the House of Representatives and 40 U.S. Senators participating as amici is provided in an appendix to this brief. Among them are:

Nancy Pelosi

House Democratic

Leader

Steny H. Hoyer

House Democratic

Whip

James E. Clyburn

House Assistant

Democratic Leader

Harry Reid

Senate Majority Leader

Charles E. Schumer

Vice Chair, Senate

Democratic Conference

Richard J. Durbin

Assistant Senate

Majority Leader

Patty Murray

Secretary, Senate

Democratic Conference

Rep. Jerrold Nadler

Sen. Dianne Feinstein

Lead Sponsors, Respect for Marriage Act

John Conyers, Jr.

Ranking Member, House

Committee on the Judiciary

Patrick J. Leahy

Chairman, Senate

Committee on the Judiciary

Jared Polis, David N. Cicilline, Sean Patrick Maloney,

Mark Pocan, Kyrsten Sinema, and Mark Takano

House LGBT Equality Caucus Co-Chairs

TABLE OF CONTENTS

Table of Authorities
Interest of the Amici Curiae
Introduction and Summary of the Argument
Argument
  I. Gay men and lesbians lack meaningful
     political power
     A. Just as heightened review applies to
        sex-based classifications, it should apply
        here
     B. Gay men and lesbians could not prevent
        DOMA, and their marriages remain the
        subject of unfavorable congressional
        attention
     C. Lesbians and gay men have yet to
        obtain basic civil-rights protections
 II. DOMA Section 3 is unconstitutional
     A. DOMA is not the rational result of
        impartial lawmaking
     B. None of the arguments advanced in
        DOMA's defense justifies the denial of
        federal recognition for married gay and
        lesbian couples
        1. Preservation of tradition is not a
           valid basis for DOMA
        2. DOMA harms American families and
           serves no legitimate federal interest
           in procreation or child-rearing
        3. DOMA undercuts Congress's long
           standing practice of deferring to the
           States on matters of family law
        4. The supposed interest in conserving
           public resources does not justify
           DOMA
        5. The asserted desire for federal
           "uniformity" does not justify DOMA.
Conclusion
Appendix--Complete list of Members of
          Congress participating as Amici

TABLE OF AUTHORITIES

Cases

Bd. of Trs. of Univ. of Ala. v. Garrett,
  531 U.S. 356 (2001)
Bowers v. Hardwick,
  478 U.S. 186 (1986)
Bradwell v. State,
  83 U.S. (16 Wall.) 130 (1873)
Civil Rights Cases,
  109 U.S. 3 (1883)
Cleburne v. Cleburne Living Ctr. … 

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