Brief of 172 members of the U.S. House of Representatives and 40 U.S. Senators as Amici Curiae in support of respondent Edith Schlain Windsor, urging affirmance on the merits.

• Position: II. DOMA Section 3 is Unconstitutional through Conclusion, with appendix and footnotes, p. 200-228 - Marriage Equality and Reproductive Rights: Lessons Learned and the Road Ahead

2. DOMA Section 3 is unconstitutional.

Justice Harlan famously said in his dissent in Plessy v. Ferguson that "the Constitution 'neither knows nor tolerates classes among citizens.'" 163 U.S. 537, 559 (1896) (Harlan, J. dissenting). That unassailable principle, which lies at the very heart of this Nation's character, dictates the outcome here: DOMA is constitutionally impermissible "class legislation" (Romer, 517 U.S. at 635 (quoting Civil Rights Cases, 109 U.S. 3, 24 (1883))), plain and simple.

Virtually every feature of DOMA distinguishes it from routine "statutory definitions and other line-drawing exercises." BLAG Br. 29. It was enacted without any genuine effort to discern a connection to a legitimate federal interest. It singles out married same-sex couples by one trait alone and denies them protection across the board. And a purpose for its enactment, clearly stated in the House Report and during floor debates, was moral disapproval of the minority group that it burdens. None of the arguments advanced in DOMA's defense comes remotely close to justifying it. Thus, even if the Court does not apply heightened review, DOMA must be struck down. "It is not within our constitutional tradition to enact laws of this sort." Romer, 517 U.S. at 633.

1. DOMA is not the rational result of impartial lawmaking.

   In its consideration of DOMA, Congress failed to engage in the type of impartial, fact-based reflection that serves as a bulwark against unconstitutional discrimination. In fact, Congress deliberately chose to forgo any examination of how DOMA would affect the many federal laws that take marital status into account, the families that it hurts, or the federal government's long history of respecting the significant variability in state marriage laws for purposes of federal law.

   1. a. DOMA affects thousands of Federal statutes and regulatory materials covering virtually every subject within the federal sphere, including Social Security, housing, nutrition, veterans' and military benefits, employment, immigration, and many other areas. Yet Congress did not study a single affected law or program or refer the bill to committees with jurisdiction over those and many other relevant subjects. As the dissenting views in the House Report stated, DOMA's "consequences [were] not adequately analyzed," and because the "committees of the Congress [did not] hold[] hearings on the various aspects of" the law, the majority was able to "use ignorance as an excuse for haste." House Report at 42.

      In fact, Congress did not even know which, or how many, federal laws were affected when it voted on the bill. It was not until nearly two months after DOMA passed the House, and just five days before it passed the Senate, that House Judiciary Committee Chairman Henry Hyde even asked the GAO to analyze DOMA's effects on federal laws and programs. See Defense of Marriage Act, B-275860, GAO/OGC97-16 (Jan. 31, 1997), at 1. (9) And Congress did not wait for GAO's answer, which came nearly four months after DOMA was signed into law. Ibid. The Congressional Budget Office did not release an estimate of DOMA's potential budgetary impact until June 2004--nearly eight years later.

      2. Similarly unexamined were sweeping and unsupported assertions that denying federal recognition to same-sex couples would serve the welfare of children. The House Report claimed that because of "the possibility of begetting children inherent in heterosexual unions," the federal government has an interest in promoting marriage as a means of "encouraging [different-sex] citizens to come together in a committed relationship." House Report at 14. As discussed more fully below, that misstates Congress's interest in marriage. Moreover, DOMA's proponents, then and now, have failed to explain how the federal government's refusal to recognize the marriages of committed same-sex couples in any way encourages different-sex couples to marry or affects their parenting behavior.

         The asserted interest in defending "traditional marriage" was also deemed "[c]losely related" to "a corresponding interest in promoting heterosexuality," according to the official House Report (at 15 n.53 (emphasis added)). Relying heavily on an opinion piece in Commentary Magazine, the House Report posited that "sexual identity confusion" was increasing and that homosexuality could and should be discouraged. Ibid. According to the Report, "[maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality." Ibid. The Report continued: "reason suggest[s] that we guard against doing anything which might mislead wavering children into perceiving society as indifferent to the sexual orientation they develop." Ibid. That acknowledged hostility toward homosexuality "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Romer, 517 U.S. at 634.

      3. The discussion of DOMA's purported advancement of Congress's interest in child welfare reveals the troubling desire of some lawmakers to prevent same-sex couples from parenting at all--a question that was not before Congress and lies beyond our authority--and an equally disturbing disregard for the welfare of children already being raised in households headed by same-sex couples. House Report at 7 n.21 ("recognizing same-sex 'marriages' would almost certainly have implications on the ability of homosexuals to adopt").

         To be sure, some members questioned and objected to the unsupported and illogical assertions regarding same-sex couples and their families. But Congress declined to consult any family- or child-welfare experts on whether denying federal recognition to married gay and lesbian couples would serve child welfare or promote stability of American families. And, of course, DOMA does neither of those things. As the leading national associations of psychological, psychiatric, and family-therapy professions confirm: "the scientific research that has directly compared gay and lesbian parents with heterosexual parents has consistently shown that the former are as fit and capable parents as the latter and that their children are as psychologically healthy and well adjusted." C.A. Am. Psychological Ass'n Amicus Br. 16.

      4. Congress also failed to evaluate critically the many mistaken assertions about the supposed need for a "uniform" federal definition of marriage. BLAG and the U.S. Senators participating as amici in support of BLAG repeat that mistake, relying heavily on Congress's alleged interest in such uniformity. See BLAG Br. 8, 33-37; Sen. Hatch Amicus Br. 16. But as explained more fully in Section II.B.5 below, there was no single, uniform federal definition of marriage before DOMA, and there still is none today.

         Indeed, invocations of "uniformity" should cause DOMA's defenders concern, rather than give them comfort. That DOMA represented an unprecedented break from Congress's long-standing deference to state marriage determinations was mentioned repeatedly during consideration of the bill. Professor Cass Sunstein testified that DOMA represented "a unique disability insofar as Congress has enacted no similar measure about any other kind of socially disapproved 'marriage,'" and that Congress was intruding on matters "traditionally handled at the state level." S. 1740: A Bill to Define and Protect the Institution of Marriage: Hearing Before the S. Comm, on the Judiciary, 104th Cong. 48 (1996). Many members echoed that concern on the House and Senate floors. For example, Senator Dianne Feinstein warned that "never in the history of this Nation--for over 200 years--has Congress usurped States' authority to define marriage." 142 Cong. Rec. S10118.

         Often, "the most telling indication of a severe constitutional problem is the lack of historical precedent for Congress's action." Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2586 (2012) (alterations omitted); see also Romer, 517 U.S. at 633 ("The absence of precedent * * * is itself instructive."). Just so here: Congress's stark departure from the long-standing practice of deferring to the States on matters of family law, and the resulting interference with state regulation of marriage (see infra Section II.B.3) are additional reasons why Congress should have viewed (and this Court should view) DOMA with deep skepticism.

         Despite those red flags, DOMA's proponents insisted that the supposed harms of same-sex marriage were so self-evident that there was no need for Congress to look beyond reflexive beliefs. The predominant view was, as Representative Robert Inglis put it, that "no debate" was necessary because "there are some things that are true and right and some things that are wrong." Defense of Marriage Act: Hearing Before the Subcomm. on the Constitution of the H. Comm, on the Judiciary, 104th Cong. 36 (1996).

   2. Congress's minimal consideration of whether DOMA actually serves legitimate federal interests unsurprisingly produced a sweeping, discriminatory law that is utterly divorced from those interests.

      "[E]ven in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the relation between the classification adopted and the object to be attained." Romer, 517 U.S. at 632. Given that DOMA is neither "narrow * * * in scope" nor "grounded in [an objective] factual context" (ibid.), it is hardly surprising that such a relationship is lacking here.

      Like Colorado's discriminatory Amendment 2 invalidated in Romer, DOMA "is a status-based enactment divorced from any factual context" from which a "relationship to legitimate state interests" can be discerned. 517 U.S. at 635. It classifies married same-sex couples simply "for its own sake" and "then denies them protection across the board" (id. at 633, 635); it applies no matter the statute, no matter the regulation, and no matter the administrative interpretation; and it affects...