Today, Democratic Leader Nancy Pelosi, Democratic Whip Steny Hoyer, Assistant Democratic Leader James E. Clyburn, Congressman Jerrold Nadler, Congressman John Conyers, Congressman Barney Frank, Congresswoman Tammy Baldwin, Congressman Jared Polis, Congressman David N. Cicilline and other House Democrats filed an Amicus Brief in the case of Edith Schlain Windsor v. United States of America.

Pelosi, Nadler and 143 other House Members filed the brief today in this landmark case, which has reached the Court of Appeals for the Second Circuit following a U.S. District Court ruling that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional.  Last year, President Barack Obama and Attorney General Eric Holder reached the same conclusion and announced that the Department of Justice would no longer defend the law in certain court cases.  By a divided 3-2 vote of the House’s Bipartisan Legal Advisory Group (BLAG) with Pelosi and Hoyer strongly objecting, Speaker John Boehner hired outside lawyers to defend DOMA in court at considerable taxpayer expense.

Edith “Edie” Windsor, 83, a constituent of Rep. Nadler’s in New York City, challenged DOMA in court after the federal government taxed her more than $363,000 when her spouse, Thea Spyer, passed away in 2009.  Edie and Thea first met in 1963 and married in 2007 after an engagement that lasted more than 40 years.  Yet, when Thea died, the federal government treated them as complete strangers because of DOMA, significantly reducing Edie’s inheritance by depriving her of the marital deduction that otherwise allows a married couple to pass property to the surviving spouse without tax penalty.

The Democratic Members’ brief, available here, provides a comprehensive explanation of how Section 3 of DOMA undermines Congress’s legitimate interests.  It rebuts BLAG’s argument that Section 3 is a routine and cautious definitional exercise that warrants absolute deference from the courts.  The brief argues that Congress did not act with caution, but hastily and without due consideration of the relevant issues.  Section 3 cannot be viewed as a benign exercise of Congressional authority, as a clear aim and effect of this law was to disapprove and disadvantage lesbians and gay men.  As a result, and unlike most Acts of Congress, DOMA cannot be viewed as the rational result of impartial lawmaking and should be treated with judicial skepticism.

The brief makes it clear that the House is not united on DOMA’s validity, that the BLAG lawyers do not speak for the entire institution, and that there is no legitimate federal interest in denying married same-sex couples the legal security, rights and responsibilities that federal law provides to couples who are married under state law.  Section 3 does not affect married heterosexual couples and their children, who are recognized regardless of DOMA.  And this law affirmatively harms married gay and lesbian couples and their children.

As the House amici point out to the court, “it is impossible to believe that any legitimate federal interest is rationally served by depriving a widow like [Edie] Windsor of the marital deduction that allows married couples to pass property to the surviving spouse without penalty, thus maximizing the survivor’s financial well-being.”

Pelosi, Nadler and the main sponsors of the brief intend to participate in each of the cases where the BLAG has intervened as each case reaches the relevant federal court of appeals.

Full text of Amicus Brief

Summary of Amicus Brief:

Heightened scrutiny applies: the brief agrees with Justice Department’s position that lesbians and gay men are an identifiable minority group that lack sufficient political power to obtain the consistent and favorable treatment of lawmakers; as a result, they need the protection that heightened judicial review provides.  

•    Congress’s treatment of gay men and lesbians illustrates that this group has been unable to prevent harmful laws or achieve desired policy results that directly impact their lives.  

•    Gay men and lesbians are a historically disfavored minority that has often been targeted for legislative action based on stereotypes and bias, making it inappropriate for courts to grant laws like DOMA the same presumption of validity afforded to most acts of Congress.  Instead, laws that single out gay men and lesbians for harm warrant judicial skepticism and heightened review.  This requires the government to show that Section 3 serves a significant federal interest, and even BLAG seems to concede that it loses under this standard.

Even under rational basis as applied by the Supreme Court in cases where the rights of a minority are at stake, Section 3 is unconstitutional.  Section 3 does not achieve, but undermines, the actual interests served by the programs that take marital status into account, and denying recognition to couples who already are married under state law does not rationally serve any of the reasons relied upon by Congress in 1996 or created in response to this litigation.

•    BLAG relies heavily on cases where Congress has engaged in relatively routine line-drawing (e.g., eligibility for FCC franchise licenses or uniform retirement age for railroad employees).  In these cases, the courts understandably have shown extreme deference to Congress’s policy choices as these choices do not reflect discrimination against an identifiable class of persons.

•    But a clearly stated purpose and effect of this law was to disapprove of and disadvantage lesbians and gay men; this distinguishes DOMA from a routine act of Congress.

•    Where, as here, Congress classifies persons, denying an entire class of citizens the rights that are afforded others, the Supreme Court has applied rational basis review to invalidate those laws.

•    None of the reasons provided by Congress in 1996 or created in response to litigation rationally serve a legitimate federal interest:  

o    Denying recognition to couples already married under state law does not further an interest in “procreation and responsible child-rearing.”  DOMA does not prevent same-sex couples from marrying and an estimated 132,000 couples have now done so, with many of these couples raising children together.  There is no logical connection between the denial of federal recognition to these same-sex couples, who already are married, and the marital or parenting behavior of different-sex couples.  It is irrational to claim that Congress needs to or should harm these families in order to benefit others, particularly as those families receive federal recognition regardless of DOMA.

o    While Congress has a legitimate interest in the welfare of children, Section 3 does not serve that interest. Children of married heterosexual couples are not affected by this law, and Section 3 actually undermines legitimate child welfare interests by harming children of married same-sex couples.  Congress should maximize the stability and security of these children, just as it does for children of married different-sex couples, by recognizing and respecting their parents’ lawful marriages.

o    Section 3 does not protect, but undercuts, state sovereignty.  Section 3 prevents states that now allow same-sex couples to marry from ensuring these states and the federal government treat these couples the same as other married couples.

o    Section 3 does not preserve scarce resources.  The government’s own analysis has proved otherwise and, in any event, saving money cannot justify imposing harm on one class of citizens.

o    Ensuring “consistency” or “uniformity” in federal treatment of marital status cannot justify treating this class of married citizens as unmarried for all federal purposes.  There have been non-trivial differences in state marriage laws throughout our nation’s history, and the federal government has proven capable of handling those differences.  It is not credible or sufficient for equal protection purposes to claim that this is now an interest only when it comes to the treatment of married same-sex couples.  Married same-sex and different-sex couples are similarly situated with regard to federal marriage-based benefits, and the Constitution requires Congress to treat them with equal regard.

Additional Background:

In 1996 when DOMA was enacted, lesbians and gay men could not marry anywhere in the world.  At that time, Congress acted with regrettable haste and without respect for its longstanding practice of respecting state marriages for purposes of federal law.  That practice had served Congress’s interests in promoting stability and security for American families; it was a mistake to abandon it.  Congress has no legitimate federal interest that is rationally served by treating married gay and lesbian couples as unmarried for all federal purposes.  Section 3 is unconstitutional and should be struck down.  

Signatories:

Nancy Pelosi
Steny Hoyer
James E. Clyburn
Jerrold Nadler
John Conyers, Jr.
Barney Frank
Tammy Baldwin
Jared Polis
David N. Cicilline

Gary L. Ackerman
Robert E. Andrews
Ron Barber
Karen Bass
Xavier Becerra
Shelley Berkley
Howard L. Berman
Timothy H. Bishop
Earl Blumenauer
Suzanne Bonamici
Robert A. Brady
Bruce L. Braley
Corinne Brown
Lois Capps
Michael E. Capuano
Russ Carnahan
John C. Carney, Jr.
André Carson
Kathy Castor
Judy Chu
Hansen Clarke
Yvette D. Clarke
Wm. Lacy Clay
Emanuel Cleaver
Steve Cohen
Gerald E. Connolly
Joe Courtney
Joseph Crowley
Danny K. Davis
Susan A. Davis
Diana DeGette
Rosa L. DeLauro
Theodore E. Deutch
Norman D. Dicks
Lloyd Doggett
Michael F. Doyle
Donna F. Edwards
Keith Ellison
Eliot L. Engel
Anna G. Eshoo
Sam Farr
Chaka Fattah
Bob Filner
Marcia L. Fudge
John Garamendi
Charles A. Gonzalez
Al Green
Raúl M. Grijalva
Luis V. Gutierrez
Janice Hahn
Colleen W. Hanabusa
Alcee L. Hastings
Martin Heinrich
Brian Higgins
James A. Himes
Maurice D. Hinchey
Mazie K. Hirono
Kathy Hochul
Rush D. Holt
Michael M. Honda
Steve Israel
Jesse L. Jackson, Jr.
Sheila Jackson Lee
Eddie Bernice Johnson
Henry C. “Hank” Johnson, Jr.
Marcy Kaptur
William R. Keating
Dennis J. Kucinich
John B. Larson
Barbara Lee
Sander M. Levin
John Lewis
Zoe Lofgren
Nita M. Lowey
Carolyn B. Maloney
Edward J. Markey
Doris O. Matsui
Carolyn McCarthy
Betty McCollum
Jim McDermott
James P. McGovern
Jerry McNerney
Gregory W. Meeks
Brad Miller
George Miller
Gwen Moore
James P. Moran
Christopher S. Murphy
Grace F. Napolitano
Richard E. Neal
Eleanor Holmes Norton
John W. Olver
William L. Owens
Frank Pallone, Jr.
Bill Pascrell, Jr.
Ed Pastor
Ed Perlmutter
Gary C. Peters
Chellie Pingree
David E. Price
Mike Quigley
Charles B. Rangel
Silvestre Reyes
Laura Richardson
Steven R. Rothman
Lucille Roybal-Allard
Bobby L. Rush
Tim Ryan
Linda T. Sánchez
Loretta Sanchez
John P. Sarbanes
Janice D. Schakowsky
Adam B. Schiff
Allyson Y. Schwartz
Robert C. “Bobby” Scott
José E. Serrano
Brad Sherman
Albio Sires
Louise McIntosh Slaughter
Adam Smith
Jackie Speier
Fortney Pete Stark
Mike Thompson
John F. Tierney
Paul Tonko
Edolphus Towns
Niki Tsongas
Chris Van Hollen
Nydia M. Velázquez
Timothy J. Walz
Debbie Wasserman Schultz
Maxine Waters
Henry A. Waxman
Peter Welch
Lynn C. Woolsey
John A. Yarmuth

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