On Friday, the Obama administration filed a brief urging the Supreme Court to strike down the Defense of Marriage Act:

DOMA, which defines marriage as between one man and one woman, has been found unconstitutional by lower courts. The Supreme Court has agreed to hear an appeal in one of those cases, U.S. v. Windsor. Oral arguments are scheduled for March 27.

The administration argues that the court may consider a higher level of rational-basis review. The brief states that the increased consideration would be valid in order to “guard against giving effect to a desire to harm an ‘unpopular group.’


The end of the brief opposed the view put forward by the House Republicans in the Bipartisan Legal Advisory Group:
[The Bipartisan Legal Advisory Group] makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. 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.

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