Lawyers for the Republican majority in the House of Representatives are disputing on several fronts a ruling by the U.S. Court of Appeals for the Second Circuit that the Defense of Marriage Act unconstitutionally discriminates against same-sex married couples. But they argue that the issues in the case can be distilled to a few fundamental legal principles.

“Although the passions that surround the issue of same-sex marriage undoubtedly run high, the issue before this Court is quite narrow,” Congress’ attorneys argue in a brief submitted to the U.S. Supreme Court last week in Windsor v. United States, 12-307. “Assuming that states remain free either to recognize same-sex marriages or retain the traditional definition, the question here is whether the federal government retains the same latitude to choose a definition for federal-law purposes, or whether instead it must borrow state-law definitions as its own, recognizing same-sex marriages of U.S. citizens residing in Massachusetts (because Massachusetts does) but not same-sex relationships of U.S. citizens residing in Virginia (because Virginia does not).”

The appellate brief complains that the circuit used the wrong standard in evaluating DOMA. And it argues that the law’s fate should be left to “the democratic process,” not dictated by the courts.

Section 3 of DOMA defines marriage as the union between one man and one woman for the purpose of determining beneficiaries for federal programs. For that reason, Edith Windsor was forced to pay more than $363,000 in federal taxes on the estate of Thea Speyer, who died in 2009. The pair were married in Canada in 2007. A heterosexual married couple would have been exempt from the taxes.

That result violated the equal protection clause of the Constitution, Circuit Judges Dennis Jacobs (See Profile) and Christopher Droney (See Profile) determined in upholding a decision by Southern District Judge Barbara Jones (See Profile). Judge Chester Straub (See Profile) dissented from the majority’s conclusion that Windsor should get a tax refund (NYLJ, Oct. 19, 2012).

Paul Clement of Bancroft, a former U.S. solicitor general who represents Congress’ Bipartisan Legal Advisory Group (BLAG), argues in his Supreme Court brief that the circuit wrongly distinguished Windsor from a leading U.S. Supreme Court case on the subject, Baker v. Nelson, 409 U.S. 810 (1972).

In that case, the court dismissed an appeal to a Minnesota Supreme Court decision holding that a state law limiting the recognition of marriage to heterosexual couples was not a violation of the Constitution.

Clement says the circuit majority acknowledged that Baker held that the traditional definition of marriage was not a violation of equal protection, “yet the panel majority concluded that ‘Baker does not control equal protection review of DOMA’ because DOMA is a federal law and there had been ‘doctrinal changes’ in Equal Protection Law since 1971.”

Clement contends that the circuit struck out on its own when it applied a higher level of scrutiny to a classification based on sexual orientation, rather than a less exacting rational basis standard.

He notes that the highest level of scrutiny has been used for groups that have been historically disfavored, lack political power and whose distinct status is based on “immutable” characteristics such as skin color or gender.

“The panel majority ultimately determined—in conflict with eleven other circuits—that heightened scrutiny applies to classifications based on sexual orientation,” Clement says. “The panel majority acknowledged that homosexuals ‘clearly have’ attained ‘political successes over the years,’ but deemed they cannot ‘adequately protect themselves from the discriminatory wishes of the majoritarian public.”

In fact, Clement argues, “gays and lesbians have substantial political power, which has grown exponentially with each election cycle.”

The attorney praises Straub’s dissent for noting that the challenge in Baker was essentially the same as in Windsor, for stating that existing precedent requires rational-basis review to sexual-orientation classifications, and for asserting that DOMA easily survives that review.

Clement stresses that states have traditionally defined marriage and argues that there is nothing wrong with the federal government, as a separate sovereign, choosing to adopt one of those definitions.

At the least, he says, the circuit should have asked New York’s highest court to clarify the issue.

Instead, “The Second Circuit declined to certify this sensitive question of state law, reasoning that the New York Court of Appeals had ‘signaled its disinclination’” to decide the issue in Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009).

Clement faults the circuit for finding it “suspicious” that Congress, while legitimately concerned with uniformity in federal marriage benefits, “would attempt to define the word ‘marriage’ when it had traditionally deferred to the states.”

He takes issue with the circuit for agreeing that promoting procreation can be an important government objective, but finding that DOMA does not further that objective.

“Thus, although it acknowledged ‘that same-sex marriage is unknown in history and tradition,’ the panel majority nonetheless invalidated DOMA,” he says.

Jones had rejected DOMA even after finding that distinction between heterosexual and homosexual married couples should be scrutinized for a rational basis.

But while Jones discredited the rationales offered for the distinction, Clement notes that Straub did not, instead finding a rational relationship between the definition of marriage in the act and the aims of Congress in enacting the law.

In defining marriage as exclusively between a man and a woman, Clement says, Congress is rationally pursuing the goals of providing a stable structure to raise unintended and unplanned offspring, encouraging the rearing of children by their biological parents and promoting childrearing by both a mother and a father.

He lauds Straub for saying that DOMA reflects “the understanding of marriage…throughout our nation’s history” and that “if this understanding is to be changed…it is for the American people to do so.”

Amicus Arguments

The procedural posture of the case is unique because, in the words of Clement, in February 2010, three months after Windsor filed suit in New York, “The Justice Department stops defending DOMA and starts attacking it.”

BLAG voted 3-2 on party lines to step in and defend the statute.

The presence of the Obama administration on the side of Windsor and the entry of BLAG into the lawsuit prompted the Supreme Court to ask for opinions on two questions of jurisdiction from court-appointed amicus Vicki Jackson of Harvard Law School, who submitted a brief with Patricia Millett, Ruthanne Deutsch and Michael Small of Akin Gump Strauss Hauer & Feld.

On the first issue, Jackson concluded that BLAG lacks Article III standing “to defend the constitutionality of laws that do not concern its own specific prerogatives.”

The interest here “in assuring that the law is enforced is a generalized one,” Jackson states. “It is the Executive Branch, not Congress, that is obligated to ‘take care’ that laws are enforced.”

“Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot assert alone,” she states.

On the second question posed by the court, Jackson states the Obama administration’s “agreement with the courts below (and with Windsor) deprives this Court of jurisdiction, because the United States suffers no injury sufficient to invoke Article III jurisdiction.”

More than two dozen amici have filed briefs backing BLAG in its defense of the law. Some of those briefs also also discuss Hollingsworth v. Perry, 12-144, where the court is being asked to decide whether the equal protection clause of the Fourteenth Amendment prohibits California from defining marriage as the union of a man and a woman.

A group of law professors led by Lynn Wardle of the J. Reuben Clark Law School at Brigham Young University say Windsor’s challenge to DOMA must fail, not only on standing and jurisdictional issues, but also because the Second Circuit “erroneously held” that DOMA’s §3 “intrudes upon state regulation of marriage and violates principles of federalism.”

Federalism, the professors state, “includes and protects the authority of Congress to define who is eligible for federal programs and federal benefits” and “for centuries, Congress has enacted similar statutes defining domestic relationships and their incidents for purposes of federal law.”

Some of the amici take positions influenced by religion.

“This nation that God blessed and built into a super power is going to perish if this Court and the governments of this land bless same-sex marriage through government license,” argues the Westboro Baptist Church, a fringe group known for picketing military funerals over opposition to gays in the military.

John Mauck of Mauck & Baker in Chicago filed an amicus on behalf of the Manhattan Declaration Inc., a Virginia-based not-for-profit founded by Charles Colson, Timothy George and Robert George.

The group argues that there are “rational and compelling reasons to preserve” the “universally constitutive male-female character” of marriage, and the effort to preserve marriage is “grounded in sincere belief and sound public policy consideration, and not in animus” toward gays.

“Redefining marriage imperils religious freedom, inhibits people of faith from living out their lives in the public square, and creates a culture where Christian believers are ostracized and themselves targeted for discrimination,” Mauck’s brief states.

See other amicus briefs filed in Windsor and briefs filed in Hollingsworth.

Windsor’s legal team is set to file its brief on Feb. 26.

Led by Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison and James Esseks of the American Civil Liberties Union, the team argued before Jones and the circuit that the distinction drawn by DOMA should be subject to the most exacting form of scrutiny but that it fails under any test.

The brief of the U.S. solicitor general is due on Feb. 22. Amici opposing the law have until March 1 to present their views.

The justices will hear arguments in the case on March 27, one day after hearing Hollingsworth.