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Sen. Hatch, other leaders defend DOMA with friend-of-the-court brief

Published: Tuesday, June 12 2012 2:18 p.m. MDT

Sen. Orrin Hatch and nine other senators filed a friend-of-the-court brief Monday defending the Defense of Marriage Act in a constitutional challenge to the law before the Ninth Circuit Court of Appeals.

Sens. 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. joined Hatch in the brief. All of the senators voted for DOMA in 1996. At the time, the legislation passed the House 342-67 and the Senate 85-14, before being signed into law by President Bill Clinton.

In February, U.S. District Court Judge Jeffrey White ruled that the stated goals of DOMA could not pass muster under a heightened scrutiny test or a lower "rational basis" threshold.

White concluded that DOMA unconstitutionally discriminates against same-sex married couples. He cited "animus against gay men and lesbians within the legislative history of DOMA," and his 43-page ruling dismissed Congress' stated governmental interest in defending and nurturing traditional marriage, defending traditional notions of morality and preserving government resources.

White suggested that prejudice may have motivated DOMA's passage, quoting the Board of Trustees of University of Alabama v. Garrett, saying, "Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves."

In Monday's friend-of-the-court brief, the senators offered two main arguments against White's conclusion, stating that the court adopted a "virtual presumption of unconstitutionality based on its evident distaste for isolated statements made by individual legislators during the court of the debate," and that Congress had "ample reasons" to clarify the federal definitions of marriage in 1996.

"There is no indication in the court's opinion that anyone could oppose same-sex marriage without being infected by 'animus' as the court defines the term," the brief argued. "It is one thing for the District Court to conclude that traditional moral views, standing alone, do not justify the enactment of DOMA; it is quite another to find that legislators who hold or express such moral views somehow taint the constitutionality of the statute."

In regards to the definition of marriage as set in DOMA, the Senators state that the law was passed to avoid a "legal and practical nightmare" in which same-sex marriages in Hawaii would impact other states and the federal government.

"This is the kind of issue that is best resolved before the cases arrived," Lynn D. Wardle, a professor at Brigham Young University, testified in 1996. "Waiting until after some state legalizes same-sex marriage and a flood of cases are filed demanding that same-sex unions formed in such as state be treated as 'marriages' for purposes of federal laws would be very unwise. It would invite a multitude of unnecessary litigation, and create confusion, inconsistency and unfairness. Different courts in different districts and circuits might reach contradictory conclusions adding to the uncertainty."

Former U.S. Attorneys General Edwin Meese III and John Ashcroft, 14 state attorneys general, the National Association for Marriage and the American College of Pediatricians also filed briefs.

The brief from the attorneys general argued that states are properly addressing the same-sex marriage issue through ongoing political debate, while the National Organization for Marriage brief discussed on Congress' duty to establish a definition of marriage for federal statutes and the American College of Pediatricians emphasized the court's "justification for dismissing" inherited wisdom and research on same-sex marriage and children.

The Meese/Ashcroft brief focused on Attorney General Eric Holder and the Obama administration's February 2011 refusal to defend DOMA. In the brief, Meese and Ashcroft stated that the administration's change of position marks "an unprecedented and ill-advised departure from over two centuries of executive branch practice."

On June 6, a federal judge in Manhattan struck down a key component of the law, just days after a federal appeals court in Boston found the law's denial of federal benefits to same-sex couples unconstitutional. Similar rulings were made by a federal judge in 2010 and two federal judges in California this year, the Boston Globe reported.

An effort to speed up an appeals court review of DOMA was denied at the end of May, with the Ninth Circuit Court rejecting the Obama administration's effort to send the case to an 11-judge en banc court, bypassing a three-judge panel, according to the SCOTUS blog.

The Ninth Circuit Court will hear oral arguments in a DOMA challenge in September.

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