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House GOP to Supreme Court: Gays too powerful to warrant judicial protection

DOMA brief asserts gays, lesbians have not faced similar levels of discrimination as other minorities
Wednesday, January 23, 2013
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Republican members of the U.S. House leadership on Tuesday told the U.S. Supreme Court it should uphold the Defense of Marriage Act (DOMA) as constitutional, arguing that gays and lesbians are a powerful interest group, and do not warrant “judicial intervention.”

In a 60-page brief filed Tuesday, Paul Clement — a former United States solicitor general and current partner at the Washington law firm Bancroft PLLC — now representing the GOP-led Bipartisan Legal Advisory Group (BLAG) of the U.S. House, argued that the federal government has the same power as state governments do to define marriage.

The brief asserts that DOMA does not attempt to exclude anyone from government benefits, and seeks only to define marriage for purposes of federal laws and programs.

The brief also attacked the Obama administration’s February 2011 decision to stop defending the constitutionality of DOMA, and argued that gays and lesbians have not faced similar levels of discrimination as other minorities, and “demonstrates the remarkable political clout of the same-sex marriage movement.”

“In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.

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“There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fast moving as same-sex marriage.”

The brief was filed in the federal challenge to DOMA, United States v. Windsor — the appellate to Windsor v. United States — in which Edith Windsor is challenging the federal government’s refusal to recognize her marriage to Thea Spyer when it comes to estate taxes on her deceased spouse’s estate.

Last year, a federal judge in New York ruled that Section 3 of DOMA is unconstitutional and violates the Fifth Amendment.

Section 3 defines marriage as “a legal union between one man and one woman as husband and wife” and spouse as “a person of the opposite sex who is a husband or a wife,” thus providing unequal protection under the law.

Although the Court has told the House leaders to defend their legal right to be in federal court to defend DOMA, the brief did not deal with that question — a separate brief on that point is due from BLAG on February 22, reported SCOTUSBlog.

Earlier this month, GOP leadership privately raised the spending cap to defend DOMA to $3 million. The contract with Clement has been adjusted three times since its original $500,000 cap.

Also on Tuesday, proponents of California’s Proposition 8 — the 2008 voter-approved ban on same-sex marriage — urged the Supreme Court to preserve that state’s definition of marriage as between one man and one woman, the first of many arguments the high court will hear this year on the issue of marriage equality.

The high court will hear arguments March 26 in the Proposition 8 case, and the following day in the DOMA challenge.

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