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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 consolidated case of Massachusetts v. Dept. of Healthand Human Servicesand Gill vs. Office of Personnel Management. Pelosi and 132 House Members filed the brief today in this landmark case, which has reached the First Circuit Court of Appeals following a federal district court ruling that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional. Earlier this year, the President and Attorney General 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.

The Democratic Members' brief, available here, provides a comprehensive explanation of how Section 3 of DOMA undermines Congress's legitimate interests. It rebuts the argument of the Bipartisan Legal Advisory Group (BLAG) 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 the 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.

The brief makes it clear that the House is not united on this issue, that the BLAG lawyers do not speak for the entire institution, and that there is no legitimate federal interest in denying married gay and lesbian 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.

Pelosi and the main sponsors of this 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 scrutiny provides.

o Heightened scrutiny is warranted for laws singling out lesbians and gay men for harm. Heightened scrutiny requires the government to show that there is a compelling interest served by Section 3 and that it is tailored to meet that interest, and even BLAG seems to concede that they lose under this standard.

o 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.

Even under rational basis review, 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.

o 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.

o But the 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.

o 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.

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

1. Denying recognition to couples already married under state law does not further an interest in -procreation and responsible child-rearing.- DOMA does not prevent gay and lesbian couples from marrying and an estimated 132,00 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 gay and lesbian couples, who already are married, and the marital or parenting behavior of different-sex couples. It is nonsensical 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.

2. 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 lesbian and gay 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.

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

4. 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.

5. Ensuring -consistency- 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 to claim that this is now an interest only when it comes to the treatment of married lesbian and gay 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 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.