FOR IMMEDIATE RELEASE

November 3, 2011

133 Members of Congress Argue for DOMA’s Demise in Gill Amicus Brief

“DOMA was not the rational result of impartial lawmaking”

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Today, 133 members of the U.S. House of Representatives filed an amici brief supporting Gill v. Office of Personnel Management, GLAD’s challenge to the federal Defense of Marriage Act (DOMA), in the First Circuit Court of Appeals in Boston. Among the signatories are lawmakers who voted in favor of the law in 1996, as well as the two dissenting members of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), which is now defending DOMA in court.

The House Members argue that the law is unconstitutional and clarify that they oppose the arguments purportedly presented on their behalf by the lawyers BLAG hired. House Democratic Leader Nancy Pelosi and House Democratic Whip Steny H. Hoyer signed the brief as “objecting members” of BLAG.

In making their case against DOMA’s constitutionality, the lawmakers state, “the Fifth Amendment’s equal protection guarantee renders Section 3 invalid under any judicial standard. The driving force behind this law was the desire to disapprove and disadvantage gay and lesbian couples, which is not a legitimate federal interest. …Unlike most acts of Congress, which are presumed valid and appropriately given judicial deference, DOMA was not the rational result of impartial lawmaking.”

Additionally, the Congress Members join with the U.S. Department of Justice in arguing that laws that single out gay people should be accorded heightened judicial scrutiny under the existing test. The brief adds its voice on a part of the heightened scrutiny test contested by BLAG – whether gay people are a minority or lack relative political power.  From the trenches, this brief argues that gay people lack political power in the Congress. 

“We’re thrilled that more than 130 members of Congress are willing to make such a strong case that DOMA was unconstitutional in 1996 and that it is unconstitutional now,” said Mary L. Bonauto, Civil Rights Project Director for GLAD.

In addition to Democratic Whip Hoyer, other signers of the amicus brief who voted for DOMA in 1996 but now view it as unconstitutional include House Assistant Democratic Leader James E. Clyburn and Reps. Robert E. Andrews, Earl Blumenauer, Rosa L. DeLauro, Lloyd Doggett, Michael F. Doyle, Bob Filner, Eddie Bernice Johnson, Sander M. Levin, Nita M. Lowey, Richard E. Neal and Bobby L. Rush.

In the brief, the House Members note that at the time DOMA was passed, there was little understanding of gay and lesbian people, let alone same-sex couples or same-sex couples raising children—same-sex couples could not marry anywhere in the world, and Bowers v. Hardwick, the infamous Supreme Court decision upholding laws criminalizing private, consensual sexual activity between gay people, was still the law of the land. “In this atmosphere, many were reluctant to speak openly about themselves or their families,” the Members write. “This understandable reticence permitted false stereotypes and reflexive bias to dominate the public and congressional debate about allowing same-sex couples to marry.”

The congressional brief is one of 10 amici curiae briefs filed in support of Gill that collectively reflect a broad and deep opposition to DOMA’s exclusion of married same sex couples from federal marital protections, including: a business brief joined by companies large and small in a wide swath of industries; a labor brief by leading organizations representing workers and a filing from Citizens for Responsibility and Ethics showing how DOMA undermines ethics laws and burdens the public fisc.

Gill v. Office of Personnel Management, was the first strategic case in the nation to be filed against DOMA. In July 2010, GLAD won the first-ever ruling at the district court level that DOMA is unconstitutional, and GLAD’s case is the first to reach a federal appellate court.