212 Members Of Congress Ask Court To Strike Down DOMA

"DOMA imposes a sweeping and unjustifiable federal disability on married same-sex couples," the Democratic members of Congress write.

WASHINGTON — Senate Majority Leader Harry Reid, House Minority Leader Nancy Pelosi and 210 other Democratic members of Congress urged the Supreme Court Friday to strike down the federal definition of marriage contained in the Defense of Marriage Act.

Among those urging the court to act were the House and Senate Democratic leadership, all seven out LGBT members of Congress and some members of Congress who voted for DOMA in 1996.

In summary, they agree with the Obama administration that laws like DOMA that classify people based on sexual orientation should receive heightened judicial scrutiny — but then go on to argue that DOMA is unconstitutional even if the court chooses not to proceed under such a heightened review:

We agree that heightened review is appropriate here, and that DOMA must be struck down under that standard. We offer our unique perspective on why gay men and lesbians lack the meaningful political power that some (including BLAG) have argued might justify denying heightened judicial scrutiny.

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.

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