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Obama Administration Files Brief Stating DOMA Unconstitutional

Seal of the United States Department of Justice

Seal of the United States Department of Justice (Photo credit: Wikipedia)

Solicitor General Donald Verrilli has filed a brief urging the Supreme Court to strike down the Defense of Marriage Act. Verrilli, acting on behalf of the Obama Administration, calls the law unconstitutional based upon how it violates “the fundamental guarantee of equal protection.”

Verrilli argues that the federal law which dates back to 1996 should get close scrutiny, and writes:

“The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”


“The government has previously defended Section 3 under rational-basis review, and does not challenge the constitutionality of Section 3 under that highly deferential standard.”


“This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.”

Verrilli lays out arguments that lesbians and gays have been historically discriminated against. The Defense of Marriage Act or DOMA defines marriage as being between one man and one woman under Federal law. It is the only law in the history of the United States that has encroached on the states’ right to define what marriage is. A law banning polygamy dating back to the mid-1800′s only applies to United States territories.

Verrilli has argued the case based on both the various levels of scrutiny.

The Supreme Court is suppose to hear oral arguments on US v. Windsor starting on 27 March. To date, the lower courts have found DOMA to be unconstitutional.

The Supreme Court still has to decide whether or not the House of Representatives had the right to appeal the case when President Obama ordered the Department of Justice to quit the case.



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