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Obama administration to argue for gay marriage in Supreme Court case

The US Supreme Court next month hears arguments in a case challenging the 'Defense of Marriage Act.' In a brief filed Friday, the Obama administration asserts that DOMA discriminates against gay and lesbian couples in violation of the US Constitution.

By Staff writer / February 23, 2013

Edith Windsor in her New York City apartment. Ms. Windsor is challenging the federal Defense of Marriage Act in the United States Supreme Court. She sued the government in 2010 because she was told to pay $363,053 in federal estate tax after her partner of 44 years, Thea Spyer, died in 2009.

Richard Drew/AP


The Obama administration has taken another important step in its advocacy of same-sex marriage, weighing in on an important case to be heard in the US Supreme Court next month.

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The essence of the administration’s argument is that the 1996 “Defense of Marriage Act” violates the US Constitution in defining marriage as the legal union between one man and one woman – specifically Section 3 of DOMA, which bars recognition of same-sex marriages in the granting of federal benefits including Social Security survivors’ benefits, immigration, insurance benefits for government employees, and filing joint tax returns.

In the Justice Department brief filed with the Supreme Court Friday, Solicitor General Donald Verrilli writes that DOMA’s Section 3 “targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society.”

How much do you know about the US Constitution? A quiz.

“It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest,” Mr. Verrilli writes. “The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.”

The administration made it clear during the latter half of Mr. Obama’s first term that it would not continue to defend DOMA in the court cases where it’s been challenged. Taking up DOMA’s defense has been the “Bipartisan Legal Advisory Group” in the US House of Representatives, directed by Speaker John Boehner to take the place of the Justice Department in arguing court cases on behalf of the controversial law.

The House brief filed last month asserts that the same-sex marriage issue should be left to the democratic process and that gays are quite capable of pursuing their rights in those venues, according to a Politico analysis.

“Gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history,” the House brief says.


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