Obama administration wants DOMA divorce

In a legal brief submitted late Friday, the Obama administration urged the U.S. Supreme Court to strike down the Defense of Marriage Act (DOMA), which says marriage can only be between one man and one woman.

“The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” government lawyers wrote. “Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”

The government’s position comes as no surprise. Congress adopted the law, which governs federal agencies, in 1996. When Edith Windsor filed a constitutional challenge, the Obama administration declined to defend the law. The district court ruled in Windsor’s favor, declaring the act unconstitutional.

When the Supreme Court hears oral arguments in the case on March 27, a bipartisan legal advisory group acting on behalf of the U.S. House of Representatives will argue in favor of keeping the law.

In its brief, the administration described sexual orientation as a core aspect of human identity: “Its expression, particularly in loving and committed relationships, is an ‘integral part of human freedom.’ … There is broad scientific and medical consensus that sexual orientation is typically not a voluntary choice, and that efforts to change an individual’s sexual orientation are generally futile and potentially harmful.”

DOMA does not forbid states from approving same-sex “marriage,” but it prevents the federal government from recognizing those unions. That represents a break in the longstanding practice of recognizing state-sanctioned marriages, even when the rules governing the relationships differ slightly, the government’s lawyers argue.

But until recently, all differences in state laws governed minor details, not the fundamental form of a marriage.

The Fifth Amendment’s Due Process Clause forms the basis of the government’s argument. The government argues that DOMA violates the clause, which declares “all persons similarly situated should be treated alike,” by refusing to recognize same-sex “marriages” sanctioned under the same laws as heterosexual marriages.

Edith Windsor, the plaintiff in the case, sued the government after the Internal Revenue Service refused to refund her any portion of the $363,053 in taxes she paid as executor of her partner’s estate. Windsor married her partner, Thea Spyer, in Canada in 2009. The women lived in New York, which did not recognize same-sex unions until 2011.

Only nine states currently recognize same-sex “marriage.” Thirty-nine have laws expressly forbidding it.

The day before it hears the DOMA case, the Supreme Court will consider a challenge to California’s Proposition 8, a voter-approved state constitutional amendment that recognizes marriage as being between one man and one woman. Although the Obama administration wants the right to recognize same-sex unions, it has not weighed in on the Proposition 8 case. Government lawyers have until Thursday to file an amicus, or friend-of-the-court, brief in the case.