- (Photo: REUTERS/Jonathan Ernst)
The Obama administration on Friday filed a brief, urging the Supreme Court to strike down Section 3 of the Defense of Marriage Act, which keeps the federal government from recognizing same-sex couples legally married in states, and calling the law unconstitutional.
In the brief filed in United States v. Windsor, a case challenging Section 3 of DOMA, Solicitor General Donald Verrilli asked the court to uphold a federal appeals court ruling that found the 1996 federal law to be unconstitutional.
"Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection," Verrilli argued in the brief. "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 brief counters the view of the House Republicans in the Bipartisan Legal Advisory Group that the courts cannot decide on the issue.
Calling it a "rare case," it argued that "deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law." Section 3 of DOMA, it adds, "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."
The brief goes on to say 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."
The case deals with Edith Windsor, who was asked to pay $363,000 in property taxes after her same-sex partner, Thea Spyer, died in 2009. They married in Canada in 2007. While New York, their home state, recognized their same-sex marriage, the federal government did not.
Oral arguments are scheduled for March 27.
Friday's brief also mentions Proposition 8, the 2008 California amendment that banned gay marriage, as an "example" of discrimination.
Last week, the Obama administration was said to be considering filing a friend of the court brief in the Prop. 8 case.
Austin R. Nimocks, senior counsel at Alliance Defending Freedom, who is a co-counsel in the case in favor of upholding Prop. 8, told The Christian Post in a phone interview that ADF will hold off on commenting on such a brief until, or if, it is actually filed. However, he shared his hopes that the Supreme Court justices will not change the traditional definition of marriage.
"The wisest course of action is for the Supreme Court to allow the debate over marriage to continue in this country and not judicially impose same-sex marriage on Americans," Nimocks said.
The administration has until Feb. 28 to file a brief in the Prop. 8 case. The Supreme Court will take it up on March 26, and can decide to uphold the ban, to reverse it in California alone, or even to prohibit states from banning gay marriage. Currently, each state has the right to decide its own marriage laws.
President Obama last May declared he is in favor of legally recognizing same-sex marriage.
During January's inaugural address, the president insisted that gays and lesbians should be "treated like anyone else under the law." "For if we are truly created equal, than surely the love we commit to one another must be equal as well," Obama told the nation at the U.S. Capitol.
Nine states, and the District of Columbia, have legalized same-sex marriage, but the practice remains illegal in the majority of other states.