One-hundred and thirty members of the U.S. House filed on Tuesday a brief asking the Supreme Court of the United States to uphold a lower court ruling striking down the Defense of Marriage Act.
In the brief, signed by Minority Leader Nancy Pelosi and all four openly gay members of the House, representatives Tammy Baldwin, Barney Frank, David Cicilline, and Jared Polis, among many others, the Representatives argue that DOMA was enacted on the unsound notion of protecting procreative sex when clearly allowing gay and lesbian people to marry does nothing to undermine the reproductive health of heterosexual couples. The brief also argues that DOMA undercuts state sovereignty.
In the brief, the Reps challenge the Bipartisan Legal Advisory Group’s (BLAG) arguments for defending DOMA, citing that BLAG’s argument about so-called “same-sex marriage tourism,” that couples married in one state would force recognition of their unions in another and therefore the federal government has a legitimate interest in maintaining a ban, runs contrary to the federal government’s position on existing issues like divorce:
To deal with differences among state marriage laws that have always existed by virtue of the fact that each State sets its own marriage rules, however, the federal government has always used choice-of-law rules to determine marital status for purposes of federal law. For example,during a time when some States imposed race-based restrictions in their marriage laws, the federal government used choice-of-law rules to accommodate differing state marriage policies and determine marital status for purposes of federal law. See 20 C.F.R. § 404.1101 (Supp. 1952). Congress also refused to step in to address the uncertainty created by “migratory divorce”; instead, it continued to defer to state marital determinations despite the large number of opposite-sex couples whose marital status needed to be determined for purposes of state and federal law through application of even-handed choice-of-law rules.
The Reps conclude by saying:
Prior to DOMA, Congress achieved its legitimate federal interests inpromoting the welfare of American families by working cooperatively with the States and respecting state marriage determinations. Congress’s radical departure from that federalist practice was a mistake; because Section3 violates the Fifth Amendment’s equal protection guarantee, it is also unconstitutional.
The case in question is Golinski v. Office of Personnel Management where Karen Golinski, a federal court employee, sued the government after she was denied the same spousal benefits for her wife that a married heterosexual employee would have been able to access.
Both a federal district court and the court of appeals have ruled that DOMA Section 3, which was used to deny Golinski such benefits, violates the Constitution in this regard.
The Obama administration in February 2011 concluded that it could not defend the constitutionality of Section 3, leaving such defense up to the Republican-controlled House. BLAG, acting on behalf of the Republican House leadership, appealed the Golinski case to the Supreme Court.
The Obama administration, acting in support of Golinski, last week asked the SCOTUS to allow the lower court ruling to stand.