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Defending DOMA: A Peek at BLAG's Briefs

By Robyn Hagan Cain | Last updated on

The Supreme Court corollary to "pics or it didn't happen" should be "briefs or it isn't real." Just in case you were pinching yourself -- doubting that the Court might actually decide on same-sex marriage -- we finally have briefs.

Tuesday, the House of Representatives Bipartisan Legal Advisory Group (BLAG) submitted a brief defending the Defense of Marriage Act (DOMA). And, it's kind of a doozy.

Here are three of BLAG's major arguments, in the group's own words:

  1. Bedrock principles of federalism make clear that the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes and has a unique interest in treating citizens across the nation the same.
  2. In considering DOMA's constitutionality, the Court should apply rational basis review as it previously has done when considering classifications on the basis of sexual orientation.
  3. The Second Circuit erred when it became the first court of appeals to treat sexual orientation as a quasi-suspect class ... as gays and lesbians have substantial political power.

Here are a few of the issues that might be raised with those arguments.

First, the federal government may have the right as a sovereign to define marriage, but DOMA doesn't treat "citizens across the nation the same." In case BLAG hasn't noticed, legally-married same-sex couples don't get the same federal benefits as legally-married heterosexual couples. Isn't that the opposite of treating citizens across the nation the same?

Second, BLAG states "there is little question that DOMA rationally furthers multiple legitimate government interests" because "the federal government has a unique interest in ensuring that federal benefits and tax burdens are distributed equally such that a same-sex couple in Virginia is treated no differently for federal-law purposes from one in Massachusetts." Take a moment to ponder that reasoning.

Third, BLAG says the Court shouldn't adopt the Second Circuit's heightened scrutiny standard because "creating new suspect classes takes issues away from the democratic process" and gay citizens already have plenty of access to the democratic process. If that were true, would 37 states still have laws/constitutional amendments limiting marriage to heterosexual couples? Unlikely.

BLAG concluded its brief summary by suggesting that the legislative branch should retain control over marriage:

... the correct answer is to leave this issue to the democratic process. In that process, there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus ... Constitutionalizing an issue yields a one-size-fits-all-solution that tends to harden the views of those who lose out at the courthouse, rather than the ballot box. In the final analysis, the democratic process is at work on this issue; there is no sound reason to constitutionalize it.

If this is what BLAG plans to argue before the Nine, DOMA is not long for this world. It seems doubtful that the moderates on the Court would want to uphold DOMA under the rationale that discrimination should be applied equally.

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