As mentioned earlier in our blog, the Supreme Court is preparing to hear oral arguments from the petitioner, the U.S. Attorney's Office and a caucus of Republican congressmen. The oral arguments are scheduled to be heard from all parties on March 27th of this year, but with the final briefs having been filed in advance of those proceedings, we finally get insight into the Obama administration's legal explanation as to why the Defense of Marriage Act (DOMA) is unconstitutional.
In short, the Obama administration has argued in their brief that sexual orientation, like race, should receive a heightened level of review that comes with sexual orientation being classified as "suspect". They seek this justification after having argued that sexual orientation, like race, has a storied history of discrimination, that discrimination has resulted in political powerlessness, and perhaps most contentiously, that sexual orientation is an immutable and distinguishing characteristic.
Historically, the Supreme Court has reviewed discrimination on the basis of sexual orientation on a mere rational basis test; specifically, if the law as written can be determined to be subjectively reasonable, then it will be upheld as Constitutional. The Obama administration instead is seeking that the court review the DOMA with a much more difficult standard to defend. The Obama administration concedes that if they cannot receive this heightened scrutiny, they no longer will challenge the constitutionality of the law. This an all-or-nothing approach is a bold argument to make before the current court, but it may be the only card the administration felt it had left to play in this case.
Perhaps, most importantly to our readers, the Defense of Marriage Act has prevented most of the Department of Defense from having to make significant changes to their fiscal policies as a result of the repeal of Don't Ask Don't Tell. If the Defense of Marriage Act were to be found unconstitutional, it's likely the defense department would have to address such concerns as housing and spousal allowances for openly gay service members.
Citation: U.S. v Windsor, No. 12-307, On Writ of Certiorari to the United States Court of Appeals for the Second Circuit, February 2013