Yesterday, amicus briefs were filed in support of the Defense of Marriage Act in the Ninth Circuit. A week before, the excellent attorneys who have intervened in the case representing the Bipartisan Legal Advisory Group of the House of Representatives (since the administration refuses to defend the law) filed their brief. The case is yet another challenge to DOMA in the federal court system and one of two that arises from the Northern District of California.
One of the amicus briefs was filed on behalf of ten U.S. senators. This brief provides some useful context for the panel that will review the trial court’s ruling that DOMA was unconstitutional. One of the senators on the brief, Orrin Hatch, chaired the Senate Judiciary Committee at the time of DOMA’s passage and the brief notes (although the District Court ignored this) that “the committee also heard testimony from constitutional scholars supporting the constitutionality of DOMA, and Senator Hatch received written assurance from the Department of Justice that it saw no constitutional infirmity in the statute.” Even one of the witnesses speaking in opposition to DOMA conceded the validity of the section at issue in this case.
A very important part of the brief is its response to “a fundamental misunderstanding of the judicial role in passing on the constitutionality of a federal statute.” The brief explains that nothing in constitutional law “authorizes a court to strike down an otherwise constitutional law based on the belief that legislators individually, or the Congress as a whole, were motivated by ‘animus.’ Adopting any such doctrine would be highly dangerous to the separation-of-powers and the proper functioning of our constitutional system.” In fact, they explain, the accusation of animus “is little more than an attempt to win an argument by disparaging the motives of the other side.” The senators characterize what the trial court did in this case: “The District Court’s approach cherry-picks statements made by individual members, construes them as reflective of improper motivation, and then imputes these improper motives to the Congress as a whole.” Among other problems with this approach, the brief points out: “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.”