Pelosi, 132 House Members File Amicus Brief in Landmark Court Challenge to DOMA

Press Release

By: Howard Berman, Eddie Johnson, Xavier Becerra, Paul Tonko, Mike Honda, Linda Sánchez, Earl Blumenauer, Bob Filner, John Lewis, Susan Davis, Sheila Jackson Lee, John Garamendi, Lois Capps, Ted Deutch, Judy Chu, Jim McDermott, Betty McCollum, Rosa DeLauro, Bobby Scott, Henry Waxman, Hansen Clarke, Frank Pallone, Jr., Lucille Roybal-Allard, Steve Rothman, Eleanor Norton, André Carson, Mike Doyle, Jr., George Miller, Pete Stark, Brad Sherman, Bobby Rush, Alcee Hastings, Sr., Sam Farr, Steve Cohen, John Olver, Richard Neal, Keith Ellison, Gerry Connolly, Kathy Hochul, Steve Israel, Sandy Levin, Chris Murphy, Barbara Lee, David Price, Adam Smith, Bill Owens, Bill Keating, Charlie Gonzalez, Mike Thompson, Debbie Wasserman Schultz, Nydia Velázquez, Diana DeGette, Gregory Meeks, Mike Capuano, Louise Slaughter, Jan Schakowsky, Maurice Hinchey, Martin Heinrich, Jim Clyburn, Jerry Nadler, Nancy Pelosi, Adam Schiff, Shelley Berkley, Luis Gutiérrez, Jesse Jackson, Jr., Mike Quigley, Dennis Kucinich, Zoe Lofgren, John Larson, Tim Ryan, Tim Bishop, Brian Higgins, Chris Van Hollen, Jr., Emanuel Cleaver II, Jackie Speier, Donna Edwards, Tim Walz, Ed Towns, Bruce Braley, Yvette Clarke, Rush Holt, Jr., Mazie Hirono, Chellie Pingree, Nita Lowey, Jim McGovern, John Tierney, Tammy Baldwin, Jared Polis, John Conyers, Jr., John Yarmuth, Peter Welch, Maxine Waters, Donald Payne, Gary Ackerman, Gwen Moore, Hank Johnson, Jr., Joe Courtney, Lacy Clay, Jr., Chaka Fattah, Sr., Lynn Woolsey, Marcia Fudge, Danny Davis, Jerry McNerney, Anna Eshoo, Jay Inslee, Laura Richardson, Lloyd Doggett II, Rob Andrews, Raul Grijalva, Ed Pastor, Gary Peters, Grace Napolitano, Colleen Hanabusa, Joe Crowley, Jerry Moran, Doris Matsui, Brad Miller, Niki Tsongas, John Sarbanes, Jim Himes, José Serrano, Eliot Engel, Carolyn Maloney, Charlie Rangel, Loretta Sanchez, Ed Markey, Carolyn McCarthy, Karen Bass, Janice Hahn, Bob Brady, Barney Frank, David Cicilline, Steny Hoyer
Date: Nov. 2, 2011
Location: Washington, DC

Today, Democratic Leader Nancy Pelosi, Democratic Whip Steny Hoyer, Assistant Democratic Leader James E. Clyburn, Congressman Jerrold Nadler, Congressman John Conyers, Congressman Barney Frank, Congresswoman Tammy Baldwin, Congressman Jared Polis, Congressman David N. Cicilline and other House Democrats filed an Amicus Brief in the consolidated case of Massachusetts v. Dept. of Health and Human Services and Gill vs. Office of Personnel Management. Pelosi and 132 House Members filed the brief today in this landmark case, which has reached the First Circuit Court of Appeals following a federal district court ruling that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional. Earlier this year, the President and Attorney General reached the same conclusion and announced that the Department of Justice would no longer defend the law in certain court cases. By a divided 3-2 vote of the House's Bipartisan Legal Advisory Group (BLAG) with Pelosi and Hoyer strongly objecting, Speaker John Boehner hired outside lawyers to defend DOMA in court at considerable taxpayer expense.

The Democratic Members' brief, available here, provides a comprehensive explanation of how Section 3 of DOMA undermines Congress's legitimate interests. It rebuts the argument of the Bipartisan Legal Advisory Group (BLAG) that Section 3 is a routine and cautious definitional exercise that warrants absolute deference from the courts. The brief argues that Congress did not act with caution, but hastily and without due consideration of the relevant issues. Section 3 cannot be viewed as a benign exercise of Congressional authority as the clear aim and effect of this law was to disapprove and disadvantage lesbians and gay men. As a result, and unlike most Acts of Congress, DOMA cannot be viewed as the rational result of impartial lawmaking.

The brief makes it clear that the House is not united on this issue, that the BLAG lawyers do not speak for the entire institution, and that there is no legitimate federal interest in denying married gay and lesbian couples the legal security, rights and responsibilities that federal law provides to couples who are married under state law. Section 3 does not affect married heterosexual couples and their children, who are recognized regardless of DOMA. And this law affirmatively harms married gay and lesbian couples and their children.

Pelosi and the main sponsors of this brief intend to participate in each of the cases where the BLAG has intervened as each case reaches the relevant federal court of appeals.

Full text of Amicus Brief

Summary of Amicus Brief:

Heightened scrutiny applies: the brief agrees with Justice Department's position that lesbians and gay men are an identifiable minority group that lack sufficient political power to obtain the consistent and favorable treatment of lawmakers; as a result, they need the protection that heightened judicial scrutiny provides.

* Heightened scrutiny is warranted for laws singling out lesbians and gay men for harm. Heightened scrutiny requires the government to show that there is a compelling interest served by Section 3 and that it is tailored to meet that interest, and even BLAG seems to concede that they lose under this standard.
* Congress's treatment of gay men and lesbians illustrates that this group has been unable to prevent harmful laws or achieve desired policy results that directly impact their lives.

Even under rational basis review, Section 3 is unconstitutional. Section 3 does not achieve, but undermines, the actual interests served by the programs that take marital status into account and denying recognition to couples who already are married under state law does not rationally serve any of the reasons relied upon by Congress in 1996 or created in response to this litigation.

* BLAG relies heavily on cases where Congress has engaged in relatively routine line-drawing (e.g., eligibility for FCC franchise licenses or uniform retirement age for railroad employees). In these cases, the courts understandably have shown extreme deference to Congress's policy choices as these choices do not reflect discrimination against an identifiable class of persons.
* But the clearly stated purpose and effect of this law was to disapprove of and disadvantage lesbians and gay men; this distinguishes DOMA from a routine act of Congress.
* Where, as here, Congress classifies persons, denying an entire class of citizens the rights that are afforded others, the Supreme Court has applied rational basis review to invalidate those laws.
* None of the reasons provided by Congress in 1996 or created in response to litigation rationally serve a legitimate federal interest:

1. Denying recognition to couples already married under state law does not further an interest in "procreation and responsible child-rearing." DOMA does not prevent gay and lesbian couples from marrying and an estimated 132,00 couples have now done so, with many of these couples raising children together. There is no logical connection between the denial of federal recognition to these gay and lesbian couples, who already are married, and the marital or parenting behavior of different-sex couples. It is nonsensical to claim that congress needs to or should harm these families in order to benefit others, particularly as those families receive federal recognition regardless of DOMA.
2. While Congress has a legitimate interest in the welfare of children, Section 3 does not serve that interest. Children of married heterosexual couples are not affected by this law, and Section 3 actually undermines legitimate child welfare interests by harming children of married lesbian and gay couples. Congress should maximize the stability and security of these children, just as it does for children of married different-sex couples, by recognizing and respecting their parents' lawful marriages.
3. Section 3 does not protect, but undercuts, state sovereignty. Section 3 prevents states that now allow lesbian and gay couples to marry from ensuring these states and the federal government treat these couples the same as other married couples.
4. Section 3 does not preserve scarce resources. The government's own analysis has proved otherwise and, in any event, saving money cannot justify imposing harm on one class of citizens.
5. Ensuring "consistency" in federal treatment of marital status cannot justify treating this class of married citizens as unmarried for all federal purposes. There have been non-trivial differences in state marriage laws throughout our Nation's history, and the federal government has proven capable of handling those differences. It is not credible to claim that this is now an interest only when it comes to the treatment of married lesbian and gay couples. Married same-sex and different-sex couples are similarly situated with regard to federal marriage-based benefits, and the Constitution requires Congress to treat them with equal regard.

Additional Background:

In 1996 when DOMA was enacted, lesbians and gay men could not marry anywhere in the world. At that time, Congress acted with regrettable haste and without respect for its longstanding practice of respecting state marriages for purposes of federal law. That practice had served Congress interests in promoting stability and security for American families; it was a mistake to abandon it. Congress has no legitimate federal interest that is rationally served by treating married gay and lesbian couples as unmarried for all federal purposes. Section 3 is unconstitutional and should be struck down.


Nancy Pelosi
Steny Hoyer
James E. Clyburn
Jerrold Nadler
John Conyers, Jr.
Barney Frank
Tammy Baldwin
Jared Polis
David N. Cicilline

Gary L. Ackerman
Robert E. Andrews
Karen Bass
Xavier Becerra
Shelley Berkley
Howard L. Berman
Timothy H. Bishop
Earl Blumenauer
Robert A. Brady
Bruce L. Braley
Lois Capps
Michael E. Capuano
André Carson
Judy Chu
Hansen Clarke
Yvette D. Clarke
Wm. Lacy Clay
Emanuel Cleaver
Steve Cohen
Gerald E. Connolly
Joe Courtney
Joseph Crowley
Danny K. Davis
Susan A. Davis
Diana DeGette
Rosa L. DeLauro
Theodore E. Deutch
Lloyd Doggett
Michael F. Doyle
Donna F. Edwards
Keith Ellison
Eliot L. Engel
Anna G. Eshoo
Sam Farr
Chaka Fattah
Bob Filner
Marcia L. Fudge
John Garamendi
Charles A. Gonzalez
Raúl M. Grijalva
Luis V. Gutierrez
Janice Hahn
Colleen W. Hanabusa
Alcee L. Hastings
Martin Heinrich
Brian Higgins
James A. Himes
Maurice D. Hinchey
Mazie K. Hirono
Kathy Hochul
Rush D. Holt
Michael M. Honda
Jay Inslee
Steve Israel
Jesse L. Jackson, Jr.
Sheila Jackson Lee
Eddie Bernice Johnson
Henry C. "Hank" Johnson, Jr.
William R. Keating
Dennis J. Kucinich
John B. Larson
Barbara Lee
Sander M. Levin
John Lewis
Zoe Lofgren
Nita M. Lowey
Carolyn B. Maloney
Edward J. Markey
Doris O. Matsui
Carolyn McCarthy
Betty McCollum
Jim McDermott
James P. McGovern
Jerry McNerney
Gregory W. Meeks
Brad Miller
George Miller
Gwen Moore
James P. Moran
Christopher S. Murphy
Grace F. Napolitano
Richard E. Neal
Eleanor Holmes Norton
John W. Olver
William L. Owens
Frank Pallone, Jr.
Ed Pastor
Donald M. Payne
Gary C. Peters
Chellie Pingree
David E. Price
Mike Quigley
Charles B. Rangel
Laura Richardson
Steven R. Rothman
Lucille Roybal-Allard
Bobby L. Rush
Tim Ryan
Linda T. Sánchez
Loretta Sanchez
John P. Sarbanes
Janice D. Schakowsky
Adam B. Schiff
Robert C. "Bobby" Scott
José E. Serrano
Brad Sherman
Louise McIntosh Slaughter
Adam Smith
Jackie Speier
Fortney Pete Stark
Mike Thompson
John F. Tierney
Paul Tonko
Edolphus Towns
Niki Tsongas
Chris Van Hollen
Nydia M. Velázquez
Timothy J. Walz
Debbie Wasserman Schultz
Maxine Waters
Henry A. Waxman
Peter Welch
Lynn C. Woolsey
John A. Yarmuth