Bench Memos

House Reply Brief in DOMA Case

Here’s the opening to the House’s reply brief in the DOMA case:

The many amicus briefs filed on both sides of this case amply demonstrate that the issue of same-sex marriage inspires strong feelings and passionate disagreement. But the parties’ briefs underscore that the legal issue in this case actually is quite narrow. Even DOJ concedes that Section 3 of DOMA survives traditional rational basis review. And Ms. Windsor contends that DOMA fails rational basis review only by distorting the deferential nature of a form of review so forgiving that it has led to the invalidation of only a single federal statute by this Court. Applying conventional rational basis review, multiple rational bases support Congress’ decision to clarify that the traditional definitions of “marriage” and “spouse” continue to apply for purposes of federal law only. DOMA respects the judgments of different states. It recognizes that some states can rationally choose to give full recognition to same-sex marriages, others can rationally embrace civil unions, and still others can rationally choose to retain the traditional definition. And as long as states retain the ability to choose among these various options, the federal sovereign surely has the ability to adopt the traditional and majority rule for federal law purposes.

Nor is there any basis for this Court to make sexual orientation the first new suspect class in forty years. Treating a group as a suspect class for equal protection purposes is, at bottom, a determination that by dint of a long history of official disenfranchisement or other obstacle, a group cannot protect its interests through the ordinary political processes. But gays and lesbians have made more progress through the ordinary political processes more quickly than any other group in recent memory, both on the issue of marriage and more generally. The impressive array of amici supporting affirmance provides powerful testimony to the political clout of a group that has been remarkably and increasingly successful in accomplishing its goals through the political process.

None of this is to suggest that such political gains have been easy or uniform, but that is the nature of the political process. And when it comes to an issue as fast-moving and divisive as same-sex marriage, the political process has manifold advantages over constitutionalizing the issue. The political process requires advocates to persuade opponents, not label them bigots or dismiss their arguments as explicable only by animus. The political process allows the losing side to moderate its views and seek future compromises, instead of having its views harden. The political process permits compromises, like civil unions, and transition rules, instead of one-size-fits-all solutions with retroactive consequences. The political process is in the midst of dealing with this issue, with new developments seemingly every week. For example, just last week, in Colorado, the state that passed the amendment invalidated in Romer v. Evans, 517 U.S. 620 (1996), the legislature enacted a law authorizing civil unions. As Judge Straub correctly observed, this Court “can intervene in this robust debate only to cut it short.” Supp. Pet. App. 83a. This Court should decline the invitation to cut this vital debate short, uphold DOMA as constitutional, and permit the citizens of this country to continue participating in working through this important issue.


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