Ten Republican U.S. senators have filed an amicus curiae ("friend of the court") brief supporting the Bipartisan Legal Advisory Group (BLAG) in defense of Section 3 of DOMA. There are currently 45 Republicans in the United States Senate. The senators who signed on are Orrin Hatch (R-Utah), Saxby Chambliss (R-Ga.), Dan Coats (R-Ind.), Thad Cochran (R-Miss.), Mike Crapo (R-Idaho), Charles Grassley (R-Iowa), Lindsey Graham (R-S.C.), Mitch McConnell (R-Ky.), Richard Shelby (R-Ala.) and Roger Wicker (R-Miss.). The case is United States v. Windsor.
The briefs note that the senators "served in the 104th Congress House or Senate and voted for passage of the Defense of Marriage Act (DOMA) in 1996." DOMA passed in the Senate by a vote of 85 to 14 in 1996. Sen. Hatch chaired the Senate Judiciary Committee at the time and "heard from witnesses regarding the potential recognition of same-sex marriage by the highest court in the State of Hawaii and the impact that this would have on federal law."
Discussing their interest in filing the brief, they write:
Amici are particularly concerned that the Department of Justice, having repeatedly assured Congress of DOMA's constitutionality during the legislative process, now seeks to have the law judicially invalidated. If the Department believed that there was an inadequate federal interest to justify DOMA, the time to speak was in 1996, when Congress gave careful consideration to the need for DOMA. Rather than urging the courts to give appropriate deference to an Act of Congress, as befits its proper role in our system of government, the Department now groundlessly impugns the motives of the overwhelming bipartisan majority that supported DOMA.
The 10 Republicans reject the assertion that DOMA was passed out of "animus" for gays and lesbians:
Notwithstanding the Attorney General's belated discovery of DOMA's allegedly unconstitutional motivation, this argument is flawed because legislative motivation is not a basis for setting aside a federal statute supported by legitimate and rational government interests. This Court's precedents do not support evaluating the constitutionality of a federal statute based on subjective characterizations of the motives of individual legislators. In any event, support for traditional marriage cannot be equated to "animus," as Justice O'Connor observed in her concurrence in Lawrence v. Texas, 539 U.S. 558, 585 (2003). It would be particularly inappropriate to invalidate DOMA based on the alleged motivations of individual supporters, given that the statute was passed with overwhelming bipartisan support and signed into law by President Clinton.
Their brief makes a number of points:
- Pre-DOMA, there were no same-sex marriages, so DOMA reaffirmed the existing definition.
They suggest that without DOMA, there would be national confusion over who is married or not under federal law:
Absent DOMA, the outcome of these cases would depend on (1) whether a court construed the particular federal statute to authorize benefits for same-sex couples married under state law and (2) whether the court determined that the couple in question was married under state law. Assuming that the court answered the first question in the affirmative (contrary to congressional intent), it would face the second. If there was one thing upon which all of the legal experts who testified before Congress agreed, it was that determining whether State A would recognize a same-sex marriage performed in State B would be a difficult, uncertain and unpredictable task.
And DOMA prevents this confusion, the 10 senators suggest:
By enacting DOMA, Congress sought to mitigate this national confusion by clarifying the definition of marriage for purposes of federal law, while preserving the authority of states to make determinations with regard to their own laws. By preserving the status quo (non-recognition of same-sex marriage) with respect to federal benefits, Congress reduced the incentives for "marriage tourism," forestalled the use of federal courts for LLDEF's litigation strategy, and averted the "legal and practical nightmare" that would result from disparate treatment of similarly situated same-sex couples for purposes of federal law.
Calling federal benefits given to married couples a "weapon" in the "arsenal" of people who want same-sex marriage legalized, the 10 senators promote the argument that Section 3 of DOMA serves as a disincentive for states' legalization of same-sex marriage:
DOMA does not interfere with the authority of the states with respect to licensing and recognizing marriage. To the contrary, Section 2 of DOMA preserves and protects the autonomy of each state in that regard. Section 3 of DOMA, however, advances the objective of preserving traditional marriage, not by interfering with state authority, but by removing an incentive that might otherwise encourage efforts to change state law. The prospect of obtaining numerous federal benefits for same-sex couples could be a tremendous weapon in the arsenal of those who would seek to gain recognition of same-sex marriage at the state level. It would be particularly tempting for courts to recognize same-sex marriage in order to award federal benefits to sympathetic plaintiffs.
But they suggest that this is not based on animus against gays and lesbians. Rather, it would be irrational not to "consider society's view" of marriage as being between a man and a woman, they argue:
Furthermore, with respect to DOMA in particular, there is no basis to equate support for the traditional definition of marriage with unconstitutional animus or "a bare congressional desire to harm a politically unpopular group." As Justice O'Connor noted in her concurrence in Lawrence v. Texas, "other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." Scouring the congressional record for "sound-bites" to divine and disparage the motives of individual legislators also chills the freedom of legislative speech that is the hallmark of robust democratic debate. It is simply not irrational or bigoted to oppose the redefinition of marriage in a manner "unknown to history and tradition," to use the language of the court below. See United States v. Constantine, 296 U.S. 287, 298-99 (1935) (Cardozo, J., dissenting). To the contrary, when faced with a proposed fundamental redefinition of the institution of marriage, it would be irrational not to consider "American society's historical view of a marriage as being between a man and a woman.
However, the 10 senators who signed the brief close by noting that the restrictive definition of marriage is more controversial today:
It is manifest that the traditional definition of marriage, which was overwhelmingly supported by bipartisan majorities in 1996, is more controversial today, both among the public and their elected representatives. This, however, is not a reason to end the democratic debate by asking the courts to stigmatize the motives of one side.
The next briefs in the case, including amicus briefs supporting Edith Windsor, are due the last week of February. Oral arguments at the Supreme Court will take place March 27.