U.S. Files Brief in DOMA Case, Prop 8 Case Next?

'Tis the season for submission of legal briefs before the gay legal battle royale (gay götterdämmerung or Gaytterdämmerung) before the United States Supreme Court on March 24 and 25th that will settle some of the most important issues in sexual orientation legal jurisprudence for probably the next decade.

Thursday I blogged about the powerful brief in the Perry case (Proposition 8 federal lawsuit) submitted by the good guys, the plaintiffs represented by superlawyers David Boies and Ted Olson.

Now comes word that the briefs in the other huge case, Windsor (DOMA federal law suit) are starting to come in as well. On Friday afternoon the United States filed its brief urging that the Court strike down the odious statute, arguing that laws that discriminate on the basis of sexual orientation are subject to heightened review by the courts. This is a consequence of the Obama Administration considering that LGBT people are a "suspect class" which means that government actions which impact their civil rights must have an exceeding persuasive reason for doing so linked to a legitimate government interest.

SCOTUS Blog reports and analyzes the DOJ brief:

First, among the factors that [Solicitor General] Verrilli cited in arguing for the standard were those that have led the Court, in cases involving other forms of discrimination, to adopt a “heightened scrutiny” standard: that is, whether the group seeking that kind of protection has been a target of discrimination and has been lacking in political power so that it has less or little chance of gaining protection.

Second, in finding that gays and lesbians have been, in the past and currently, the targets of discrimination and have been lacking in political power, Verrilli cited “the recent history of marriage initiatives” — the history of thirty-nine states, including California with Proposition 8, adopting bans on same-sex marriage, either by state laws or constitutional amendments.

Third, Verrilli pointed out that, at the time DOMA was passed in 1996, only three states had laws allowing only opposite-sex couples to marry.  Now, thirty-nine states do, with thirty of those coming from voter-approved state constitutional amendments.

Fourth, only six states have given same-sex couples marriage rights “through the political process,” while three more have done so through state court rulings.  “That is not a convincing record of political power rendering protection unnecessary,” Verrilli wrote.  And, at that point, the brief dropped in a footnote, which said that, “[b]y way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriages….In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.”

Thus, while this sequence was used by Verrilli explicitly to bolster his argument for applying “heightened scrutiny” to DOMA, it could not have been inadvertent that the experience with Proposition 8 itself demonstrated what the federal government deems ongoing bias.  [emphasis added]

The brief suggested that, if the Court will not embrace “heightened scrutiny,” it should not apply the easiest test — “rational basis” — but rather should go for something between “rational basis” and “heightened scrutiny.”  DOMA’s benefit bans, the brief said, cannot survive that, either.

Note the bolded sections. Although the administration has not (yet) taken a position in the Proposition 8 case, it's very string brief in Windsor which uses Proposition 8's passage as an example of ongoing bias against LGBT people is an indication of how the United States feels about the Perry case, which it is not a party to. But the United States can always file briefs to let the Judicial branch know what the Executive branch thinks about a certain issue before the court.

We'll know by next Thursday February 28th if the federal government ll be taking a side in both parts of the oncoming Gaytterdammerung!