WASHINGTON — Former Senators Bill Bradley, Tom Daschle, Christopher Dodd and Alan Simpson — all of whom voted for the Defense of Marriage Act in 1996 — told the Supreme Court Friday that "the original justifications for DOMA can no longer be credited today," concluding that "our constitutional commitment to equality does not tolerate such discrimination."
In urging the Supreme Court to strike down the federal prohibition on recognizing the state-sanctioned marriages of same-sex couples, the former senators tell the court:
DOMA is an especially poor candidate for any claim of deference to the constitutional judgment of the political braches. It was enacted hastily, with little independent consideration of its constitutionality, against the backdrop of a constitutional jurisprudence this Court has since abandoned. It was premised in large part on fears that subsequent experience has proven unfounded. And it effects a discrimination that we now have come to recognize as incompatible with our constitutional commitment to equal treatment under the law.
After detailing societal and legal changes — from state marriage law to the military — they conclude, "In short, the suggestion that our country's vital institutions need protection from gay families has been thoroughly discredited by our national experience."
Regardless of whether the Constitution prohibits the federal government from treating those gay and lesbian couples differently under the law, a group of law professors who hold differing views on that question told the Supreme Court that the DOMA is nonetheless unconstitutional because Congress has no right to pass such a law.
As groups and people opposing the Defense of Marriage Act's federal definition of marriage file amici curiae, or friends of the court, briefs in advance of Friday's deadline, the professors — primarily those with a libertarian focus in their work — oppose DOMA as an unconstitutional intrusion on states' rights to define marriage.
This federalism argument has figured into the reason why two federal appeals courts have struck down Section 3 of DOMA, the federal definition of "marriage" and "spouse," as unconstitutional. It is not, however, directly advanced by either Edith Windsor, the lesbian widow challenging DOMA at the Supreme Court, or the Obama administration, which has taken Windsor's side in the case.
Several former senior cabinet and agency officials, including Health and Human Services secretaries under Presidents George H. W. Bush and Bill Clinton — Louis Sullivan and and Donna Shalala, respectively — also filed a brief opposing DOMA on Friday. Other department or agencies represented among those who signed the brief are the Social Security Administration, the Department of Defense, the Department of Labor, the Office of Personnel Management, the Internal Revenue Service and the Department of Veterans Affairs.
Contrary to the defense of the law raised by House Republican leaders, the brief argues that "Section 3 of DOMA does not ease administrative burdens or simplify the determinations made by federal agencies." The officials go on to note, "Despite significant differences among the states over the validity of marriages, Congress never imposed a single federal benchmark before 1996 and then did so only with respect to one particular aspect of marital eligibility."
Military and intelligence officials — from former Defense Secretary William Cohen and counterterrorism official Richard Clarke to retired Army Lt. Gen. Claudia Kennedy and retired Army Gen. Wesley Clark — spoke out against the impact of DOMA on the military after the end of "don't ask, don't tell."
Calling the limits that DOMA places on servicemembers "simply untenable," the brief — authored by prominent Supreme Court lawyer Carter Phillips of Sidley Austin — contends that "DOMA harms the military by depriving a subset of legally married servicemembers and their families of the very benefits—including healthcare, housing, equal pay, and survivorship benefits—that common sense, military experience, and research have demonstrated to be essential to all military families and more fundamentally to military effectiveness."
Other briefs have come in from 212 members of Congress, the American Bar Association and, perhaps most surprisingly, a former CIA officer who argues that "DOMA dissuades countless patriotic and intelligent Americans from entering or continuing federal service, regardless of the agency involved."
The professors who signed on to the federalism-focused brief are Jonathan Adler from Case Western Reserve University School of Law, Lynn Baker from the University of Texas School of Law, Randy Barnett from Georgetown University Law Center, Dale Carpenter from the University of Minnesota Law School, Ilya Somin from George Mason University School of Law, and Ernest Young from Duke Law School.
In explaining Friday's filing, however, the law professors write:
The signatories of this brief hold a variety of opinions about same-sex marriage and about how the Constitution's individual-rights provisions may bear on regulation of those marriages. But we agree that Section 3 of the Defense of Marriage Act (DOMA) is an unconstitutional and unprecedented incursion into States' police powers.
Describing why, they note, "DOMA shatters two centuries of federal practice. Read plainly and fairly, DOMA creates, for the first time, a blanket federal marital status that exists independent of States' family-status determinations."
Addressing the House Bipartisan Legal Advisory Group's defense of the law, they conclude:
DOMA falls outside Congress's powers. Marriage is not commercial activity, and DOMA is not limited to federal-benefit programs that might rest on the Spending Clause. Any action by Congress that falls outside its specifically enumerated powers must be justified under the Necessary and Proper Clause, and DOMA cannot pass that test. ...
BLAG is wrong. The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States' policy judgments as if it had the same authority to make domestic-relations law as they do.
The former CIA officer, Graham Segroves, worked for the CIA from 2002 through 2012, and argues that "one of the Federal Government's most essential functions is to defend national security." To that end, he tells the court:
Our Nation's foreign enemies typically speak languages far different from our own, practice customs far different from our own, and, in some cases, do not recognize our right to exist. As a result, the threats that face our Nation today are exceedingly complex. Our defense against those threats requires a diverse workforce of dedicated public servants with unique skill sets, including the ability to speak foreign languages, understand foreign customs, operate discreetly within foreign nations, and develop leading-edge technologies.
DOMA hampers the Federal Government's ability to attract and retain the personnel necessary to meet these unique challenges.
The Supreme Court is scheduled to hear oral arguments in the DOMA challenge, United States v. Windsor, on March 27.