In a brief filed on February 22, 2013, the Department of Justice asked the Supreme Court of the United States to declare unconstitutional Section 3 of the Defense of Marriage Act (DOMA). In its brief arguing the merits in United States v. Windsor, the Justice Department said that "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. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional."

The brief, signed by Solicitor General Donald B. Verrilli and openly gay Principal Deputy Assistant Attorney General Stuart Delery, also asserts that laws impacting gay men and lesbians warrant "heightened scrutiny."

The government argues that "gay and lesbian people have suffered a significant history of discrimination in this country" and that "[t]he federal government, state and local governments, and private parties all have contributed to a regrettable history of discrimination against gay and lesbian people in a variety of contexts," ranging from employment and immigration discrimination to police raids of gay bars.

The Justice Department also cites the history of marriage referenda to buttress the argument of our relative political powerlessness. Pointing to the long string of defeats at the ballot box that have only recently been reversed, the brief notes that "Only six states, by comparison, have conferred marriage rights to same-sex couples through the political process; the other three have through judicial decision. That is not a convincing record of political power rendering protection unnecessary."

The brief disputes the rationalizations for DOMA proffered by the Bipartisan Legal Advisory Group, which is defending the constitutionality of DOMA on behalf of the House of Representatives. It also rejects BLAG's argument that the Court should "allow the democratic process to run its course."

Instead, it continues, "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."

The 67-page brief may be read in its entirety below.

Windsor: United States Response (merits) by

In the video below, Lavi Solaway, founder of The DOMA Project appears on MSNBC to discuss the brief with Thomas Roberts.

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