November 4, 2011 | by Chris Johnson
House Dems join fight against DOMA in court

House Minority Leader Nancy Pelosi (Blade file photo by Michael Key)

House Minority Leader Nancy Pelosi (D-Calif.) and 132 other Democrats on Thursday joined in the fight to strike down the Defense of Marriage Act in court by filing a legal brief in support of litigation against the anti-gay law.

The friend-of-the court brief was filed in the consolidated case of Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services, which is pending before the U.S. First Circuit Court of Appeals. The brief was among 11 filed against DOMA in those cases.

House Democrats contend Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, is unconstitutional because it harms LGBT families and their children and it undercuts a state’s right to regulate marriage. The brief also contends Congress acted in 1996 without due consideration in passing the law.

“While nearly seventy-five percent of the public opposed marriage for same-sex couples when Congress enacted DOMA, a majority of Americans now support it,” the brief states. “Amici are part of the communities we represent, and our understanding reflects the same arc of experience, making clear what should have been apparent in 1996: the refusal to recognize the legal marriages of a category of our citizens serves no legitimate federal interest.”

House Democrats also argue Congress’ previous enactment of laws against LGBT people, such as “Don’t Ask, Don’t Tell,” confirms laws targeting this group warrant heightened scrutiny, or should be looked upon with the assumption they’re unconstitutional.

Pelosi as well as other members of House Democratic leadership — House Minority Whip Steny Hoyer (D-Md.) and Assistant Minority Leader James Clyburn (D-S.C.) — are among the 133 Democrats who signed the brief. Rep. Jerrold Nadler, the sponsors of DOMA repeal legislation, was the lead drafter of the brief.

Also among the signers are the four openly gay members of Congress: Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.).

According to a statement, Pelosi and the main sponsors of the brief intend to make additional filings against DOMA in each of the cases where House Republicans defend the anti-gay statute.

House Democrats are joining the fight against DOMA in court as House Republicans defend the anti-gay law against the litigation. After the U.S. Justice Department announced it would no longer defend DOMA in February, the House’s Bipartisan Legal Advisory Group voted 3-2 along a party-line basis to defend DOMA. House Speaker John Boehner directed House General Counsel Kerry Kircher to take up defense of the statute and hired private attorney Paul Clement, a former U.S. solicitor general under George W. Bush, to assist in defense of the law.

The Gill case, filed by Gay & Lesbian Advocates & Defenders, and the Commonwealth case, filed by Massachusetts Attorney General Martha Coakley, arrived at the First Circuit after a district court in Massachusetts last year ruled against DOMA in the litigation. The Obama administration, which was defending DOMA at the time, appealed the cases to the First Circuit.

The other briefs that were submitted to the court were filed by business groups; psychological, medical and social work organizations; historians of marriage; and labor organizations.

Citizens for Responsibility & Ethics filed a brief contending DOMA is unconstitutional because it undermines ethical provisions that promote transparency and avoid conflicts of interest. Additionally, the organization argues the cost of the anti-gay to the federal government is a reason for striking it down.

Mary Bonauto, GLAD’s civil rights project director, said the legal briefs “provide critical and accurate information to the court.”

“They also provide overwhelming evidence for what we’ve been saying since we filed this lawsuit —and what a federal District Court Judge has already declared: there is no justification for depriving only married same-sex couples of the federal protections and responsibilities other married persons receive,” Bonauto said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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