California Proposition 8
4 min

Pressure mounts on US Supremes to strike down DOMA, Prop 8

BY NATASHA BARSOTTI — The Obama administration heads a burgeoning list of individuals and entities — including pro athletes, corporations and politicians on the left and right — urging the US Supreme Court to strike down the Defense of Marriage Act (DOMA) and California's Proposition 8.

According to Buzzfeed, the administration, in its brief to the court, argued that laws targeting gay people should be subject to greater scrutiny by the courts reviewing them and that under such scrutiny, Section 3 of DOMA is unconstitutional.

"Section 3 of DOMA violates the fundamental constitutional guarantee of
equal protection. 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," the filing states in part. "Because this discrimination cannot
be justified as substantially furthering any important governmental
interest, Section 3 is unconstitutional."

If the court does not find that DOMA qualifies for heightened scrutiny, the administration argues that "the history of discrimination and the absence of relation to one's capabilities associated with [sexual orientation] would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an 'unpopular group.'"  

In its brief, the administration also counters the argument raised by House Republicans in the Bipartisan Legal Advisory Group (BLAG) that the fate of DOMA is not an issue for the courts to decide.

"BLAG makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. 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.

On March 1, BuzzFeed reported that Senate Majority Leader Harry Reid, House Minority Leader Nancy Pelosi and 210 other Democratic Congressional members called on US Supreme Court justices to strike down the federal definition of marriage in DOMA. 

"We agree that heightened review is appropriate here, and that DOMA must be struck down under that standard," congressional members write. "We also believe that DOMA must fail even if it does not trigger heightened review. Virtually every aspect of DOMA and its legislative history — the lack of objective, rational fact-finding to connect the exclusion of married same-sex couples to a legitimate federal interest; the sweeping exclusion of gay men and lesbians based on a single identifiable trait; and the open desire of some to express disapproval of that minority group — distinguishes it from routine Acts of Congress. None of the arguments advanced in its defense is sufficient."

In another brief filed with the court Feb 28, regarding California's Proposition 8, the Obama administration argued that ”California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8.” According to, the administration urged the Supreme Court to rule in the case of Proposition 8 that same-sex marriage "should be required in eight more states, beyond the nine that already permit it, although it stopped short of explicitly calling for the justices to extend the right to the entire nation."

A number of prominent Republicans have also joined the swelling chorus of individuals and entities supporting gay marriage, The New York Times notes, even as current House Speaker, Republican John Boehner, continues to fight for DOMA's existence.

Among the more than 100 people who signed on to a GOP amicus brief in support of a suit to strike down Proposition 8 is former Utah governor Jon M Huntsman, Jr, who supported civil unions but rejected gay marriage during his 2012 presidential bid; former New Jersey governor Christine Todd Whitman; two former Massachusetts governors, William Weld and Jane Swift; former deputy defense secretary Paul Wolfowitz; author David Frum; actor Clint Eastwood; and former chairman of the Republican National Committee Ken Mehlman, who is openly gay.

Earlier in the week, professional athletes also weighed in on the issue, with outspoken allies Brendon Ayanbadejo, of the Baltimore Ravens, and Chris Kluwe, of the Minnesota Vikings, filing their own Supreme Court amicus brief in favour of gay marriage and calling on the court to overturn Proposition 8.

"Just as application of the labels 'gay' and 'queer' in derogation indicate that one class of people is inferior, deprival of the label and status 'married' equally indicates that the class is inferior," the NFL players' brief states. "Even a fifth grader knows that words have very serious meaning, and even a fifth grader can see that the proponents of Proposition 8 provide no reasoned evidence-based rationale for taking away that label and that all-important status. In America, there truly is no freedom until we’re equal."

The NFL players' brief can be read in full here. 

On Feb 26, CNN Money also reported that a number of corporations, including Apple, Facebook, Intel and Morgan Stanley would be filing an amicus brief in the Hollingsworth v Perry case, contending that laws banning same-sex marriages, "like California's ballot initiative Proposition 8, are unconstitutional under the Due Process and Equal Protection Clauses."

In addition to being a constitutional issue, the companies also make the pragmatic argument that recognition of gay couples' right to marry is a business imperative: "potential recruits or employees who are members of a same-sex couple
may forgo the opportunity to work in California, and prefer other states
(like Iowa, New York, and Massachusetts) or other nations (like Spain,
Sweden, Denmark, the Netherlands, Portugal, or Belgium) where they can
be married and obtain equal treatment and respect under the law." 

Here's a lengthy list of amicus briefs filed in support of the challenge against Proposition 8.





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