The Obama administration on Friday urged the Supreme Court to strike down the Defense Of Marriage Act in a brief that calls the law unconstitutional because it violates "the fundamental guarantee of equal protection."
Solicitor General Donald Verrilli argues in the brief that Section 3 of the 1996 federal law prohibits the marriage of same-sex couples and should get the court's close scrutiny.
"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."
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.
Verrilli argues in his brief that gays and lesbians have been historically discriminated against. He describes how DOMA should proceed if the Supreme Court does not apply the increased scrutiny:
"The government has previously defended Section 3 under rational-basis review, and does not challenge the constitutionality of Section 3 under that highly deferential standard."
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 brief wraps up with an argument against the view advanced by the House Republicans in the Bipartisan Legal Advisory Group: the issue is not for the courts to decide.
"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."