Posted by AzBlueMeanie:
On Friday, the Obama adminstration filed its briefs in U.S. v. Windsor. The brief of the Obama administration on the constitutionality of DOMA is here, and its brief on its right to pursue an appeal on DOMA is here. The brief for the House Republican leaders on their standing to appeal and their challenge to the government’s right to appeal is here.
Lyle Denniston breaks down the position of the Obama administration at Scotusblog.com, DOMA: U.S. takes tough line on marriage denial:
The Obama administration, in a sweeping defense of marriage rights for same-sex couples, argued on Friday that the denial by states of those rights over the last decade is proof that discrimination against gays and lesbians still continues. The brief cited California’s flat ban on such marriages — Proposition 8 — as an example of the ongoing problem of bias against homosexuals.
In the context of the brief, the brief references to California’s Proposition 8 were subtle and fleeting, but they immediately raised the question of whether the administration was getting into position to come out directly, next week, against that voter-approved ballot measure. It has not yet taken a position on the proposition’s constitutionality, and that is not an issue in the case in which the new document was filed — United States v.Windsor (12-307).
In a separate administration brief, also filed Friday in the Windsor case, the government’s lawyers argued that their appeal challenging the constitutionality of the federal Defense of Marriage Act is properly before the Court, and thus can be decided in that case. That 1996 law’s Section 3 barred legally married same-sex couples from any federal benefits or programs based on marriage.
The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians. Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.” And Friday’s brief defended that approach energetically.
This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court. The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.
The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard. “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.” While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”
Some observers — including one judge who was on the court panel that ruled in the case the administration has taken to the Court — have argued that, if the tougher standard is applied, not one of the state denials of marriage to same-sex couples can survive constitutionally.
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The constitutionality of Proposition 8 is pending before the Court in a separate case now under review — Hollingsworth v. Perry (12-144), and there is no direct overlap of that case with the DOMA dispute in the Windsor case. But the filing of written legal arguments in the cases is proceeding on nearly parallel tracks, and the Court will hold hearings on the cases, back to back, on March 26 and 27.
If the administration is going to move into the Proposition 8 case, on the side of the two same-sex couples who have been challenging the measure, it must file a brief next Thursday. The lawyers representing those two couples said this week that they have no idea whether they will have the administration on their side, although they are hoping for that.
But those attorneys, and their clients — and, indeed, advocates of same-sex marriage across the country — could well have seen at least some positive signs in the administration brief filed on the merits of DOMA in the Windsor case, even though Proposition 8 is not in play directly in that case.
Continue reading for brief summary. DOMA: U.S. takes tough line on marriage denial.