Bancroft's Paul Clement
Diego M. Radzinschi/NLJ
Lawyers for the Republican majority in the House of Representatives are disputing on several fronts a ruling by the U.S. Court of Appeals for the Second Circuit that the Defense of Marriage Act unconstitutionally discriminates against same-sex married couples. But they argue that the issues in the case can be distilled to a few fundamental legal principles.
"Although the passions that surround the issue of same-sex marriage undoubtedly run high, the issue before this Court is quite narrow," Congress' attorneys argue in a brief submitted to the U.S. Supreme Court last week in Windsor v. United States, 12-307. "Assuming that states remain free either to recognize same-sex marriages or retain the traditional definition, the question here is whether the federal government retains the same latitude to choose a definition for federal-law purposes, or whether instead it must borrow state-law definitions as its own, recognizing same-sex marriages of U.S. citizens residing in Massachusetts (because Massachusetts does) but not same-sex relationships of U.S. citizens residing in Virginia (because Virginia does not)."
The appellate brief complains that the circuit used the wrong standard in evaluating DOMA. And it argues that the law's fate should be left to "the democratic process," not dictated by the courts.
Section 3 of DOMA defines marriage as the union between one man and one woman for the purpose of determining beneficiaries for federal programs. For that reason, Edith Windsor was forced to pay more than $363,000 in federal taxes on the estate of Thea Speyer, who died in 2009. The pair were married in Canada in 2007. A heterosexual married couple would have been exempt from the taxes.
That result violated the equal protection clause of the Constitution, Circuit Judges Dennis Jacobs (See Profile) and Christopher Droney (See Profile) determined in upholding a decision by Southern District Judge Barbara Jones (See Profile). Judge Chester Straub (See Profile) dissented from the majority's conclusion that Windsor should get a tax refund (NYLJ, Oct. 19, 2012).
Paul Clement of Bancroft, a former U.S. solicitor general who represents Congress' Bipartisan Legal Advisory Group (BLAG), argues in his Supreme Court brief that the circuit wrongly distinguished Windsor from a leading U.S. Supreme Court case on the subject, Baker v. Nelson, 409 U.S. 810 (1972).
In that case, the court dismissed an appeal to a Minnesota Supreme Court decision holding that a state law limiting the recognition of marriage to heterosexual couples was not a violation of the Constitution.
Clement says the circuit majority acknowledged that Baker held that the traditional definition of marriage was not a violation of equal protection, "yet the panel majority concluded that 'Baker does not control equal protection review of DOMA' because DOMA is a federal law and there had been 'doctrinal changes' in Equal Protection Law since 1971."
Clement contends that the circuit struck out on its own when it applied a higher level of scrutiny to a classification based on sexual orientation, rather than a less exacting rational basis standard.
He notes that the highest level of scrutiny has been used for groups that have been historically disfavored, lack political power and whose distinct status is based on "immutable" characteristics such as skin color or gender.
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