There is no shortage of advice for the U.S. Court of Appeals for the Second Circuit as it prepares to decide whether the federal Defense of Marriage Act’s definition of marriage as exclusively between one man and one woman is constitutional.
To date, 19 amici from across the political spectrum have weighed in on the appeal brought by the Republican leadership of the U.S. House asking the circuit to reverse a June ruling by U.S. District Judge Barbara Jones in New York that Section 3 of the law violates the equal protection clause.
While the number of amici doesn’t break the record for nonparties weighing in on a major case before the Second Circuit, the volume and diversity of opinions reflect the intense divide over the issue of gay marriage.
Oral arguments are set for Sept. 27, and the undisclosed panel hearing Windsor v. United States will surely face a packed house in its ninth floor ceremonial courtroom.
In June, Jones became the fourth district judge to declare the law unconstitutional, awarding Edith Schlain Windsor $353,053, the amount of taxes levied against the estate of her late spouse Thea Clara Spyer, plus interest and costs.
Spyer’s estate would have been exempt from the tax bill but for the law, which defines marriage as “a legal union between a man and a woman as husband and wife.”
The Justice Department initially defended the law, but in February 2011 the Obama administration said it would no longer do so because the definition of marriage could not survive strict scrutiny review.
A 3-2 Republican majority of the House Bipartisan Legal Advisory Group, or BLAG, led by Speaker John Boehner of Ohio voted to intervene to defend the 1996 law and hired former U.S. Solicitor General Paul Clement of Bancroft to argue the case.
Windsor attorneys Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison and James Esseks of the American Civil Liberties Union want the Second Circuit to expedite the appeal so Windsor, 83, who recently had a heart attack, “may see justice achieved within her lifetime.”
Even though the United States is the nominal defendant, the government submitted a brief backing Windsor.
“Opposition to homosexuality, though it may reflect deeply held personal religious and moral views, is not a legitimate policy objective that justifies unequal treatment of gay and lesbian people,” writes August Flentje, an appellate staff attorney with the Justice Department’s civil division.
Windsor, a retired computer systems programmer, and Spyer, a clinical psychologist, lived together in Greenwich Village for 44 years. They were married in Canada in 2007, and the marriage was later recognized by New York state. Spyer died in 2009, leaving all of her property, including the apartment they shared, to Windsor.
Two Democrats in the minority on the BLAG vote — Minority Leader Nancy Pelosi of California and Minority Whip Steny Hoyer, of Maryland — led a group of 145 House members in filing an amicus arguing the law “is not the rational result of impartial lawmaking and violates our constitutional commitment to neutrality of law where the rights of citizens are at stake.”
Backing BLAG, former GOP Attorneys General Edwin Meese and John Ashcroft, through lawyers at the American Center for Law and Justice, filed an amicus saying they are “deeply concerned that the precedent that the Department of Justice set by failing to defend the Defense of Marriage Act in this and other litigation may have a negative impact upon the judicial process and the separation of powers set forth in the Constitution.”
Meese and Ashcroft said the decision to stop defending the act “after fifteen years of doing so and to affirmatively challenge its constitutionality in court is unprecedented in the nation’s history.”
Citizens for Responsibility and Ethics, a watchdog group that targets public officials who sacrifice the public good to special interests, argues Jones should be upheld so the public can have the benefit of anti-nepotism laws applied to same-sex couples as well as to heterosexual married couples.
The state of Indiana is the lead name on an amici filed by attorneys general in 14 states, which declares that states “are properly addressing the same-sex marriage issue through ongoing political debate and action,” and “constitutionalizing same-sex marriage would poison the political well.”
“It is legitimate and rational for states and Congress to adhere to the traditional definition of marriage,” the brief states.
However, New York Attorney General Eric Schneiderman — joined by his counterparts in Connecticut and Vermont — sees the states’ power to set conditions for marriage in a different light.
Those states’ commitment to equal-marriage rights reflects their “long-standing commitment to equal treatment and their considered judgment about the best interests of families and children,” the brief says. DOMA’s §3, the brief continues, “burdens the amici States by treating some of their residents, lawfully married same-sex couples, as second-class citizens and by undermining and denigrating the amici States’ efforts to eliminate discrimination and ensure equal rates and protections for same-sex couples and their families and children.”
The American Psychological Association, the American Academy of Pediatrics and several other national and state mental heath and social work organizations argued that science refutes one of the congressional Republicans chief arguments.
“There is no scientific basis for concluding that gay and lesbian parents are any less fit or capable than heterosexual parents, or that their children are any less psychologically healthy and well adjusted,” the organizations state in their brief.
The American College of Pediatricians, a group of some 100 dissenting physicians who broke away from the American Academy of Pediatrics in part over the group’s support for same-sex partners, filed an amicus arguing Jones was “mistaken to so cavalierly discount the child-related interests served by marriage that amply justify the definition of marriage retained by DOMA for purposes of federal law.”
Anticipating the U.S. Supreme Court would act on two petitions by early October, Clement requested the Second Circuit to suspend oral argument. But unlike the Ninth Circuit, which vacated oral argument set for last week, the Second Circuit denied Clement’s motion.