February 27, 2013 | by Chris Johnson
House Dems to urge Supreme Court to strike down DOMA
House Minority Leader Nancy Pelosi will lead Democrats in a brief against DOMA before the Supreme Court (Washington Blade file photo by Michael Key)

House Minority Leader Nancy Pelosi will lead Democrats in a brief against DOMA before the Supreme Court. (Washington Blade file photo by Michael Key)

House Democrats are circulating a legal brief that will argue against the constitutionality of the Defense of Marriage Act before the Supreme Court, the Washington Blade has learned.

Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said his boss will lead other Democrats in the friend-of-the-court brief before the Supreme Court, which is due on Friday. The case pending before the court is known as Windsor v. United States.

“There will be a strong expression of support from the House Democratic Caucus in support of overturning DOMA and casting DOMA into the dustbin of history,” Hammill said.

Hammill declined to provide additional details about the filing, so it’s unknown what the argument of the brief will be. It will likely counter the arguments presented by the House Republican-led Bipartisan Legal Advisory Group that the committee speaks for the House as a whole.

The individual House members who signed the brief and the total number of signatures wasn’t immediately known. But Ilan Kayatsky, a spokesperson for Rep. Jerrold Nadler (D-N.Y.), said his boss is the principal signer of the brief. Rep. Mark Takano (D-Calif), the only openly gay Asian-American in Congress, and Rep. Kyrsten Sinema (D-Ariz.), the only bisexual member, independently told the Washington Blade they would sign the brief.

It’s not surprising House Democrats are preparing a brief because they’ve participated in each of the DOMA challenges pending before appellate courts.

They filed a brief before the U.S. Second Circuit Court of Appeals when the Windsor case was before that court. House Democrats also filed a brief before the First Circuit in the combined case of Gill v. Office of Personnel Management and Massachusetts v. Department of Health & Human Services, and another before the Ninth Circuit in the case of Golinski v. United States.

House Democrats are preparing their brief amid a flurry of news regarding other briefs that have been submitted in the case against DOMA before the Supreme Court as well as Hollingsworth v. Perry, the case challenging California’s Proposition 8.

LGBT advocates are also eagerly waiting to see whether the Obama administration will take part in the lawsuit against Prop 8 before the Supreme Court. The deadline for the Justice Department to do so is Thursday.

Following the White House news briefing on Wednesday, the Blade shouted out to White House Press Secretary Jay Carney an inquiry on whether the Justice Department would file a brief. Without turning around to answer as he left the room, Carney replied, “I don’t have anything for you on that.”

A group of 278 businesses and organizations — including tech companies like Xerox and Microsoft as well as web companies like Google, Twitter and eBay — filed a friend-of-the-court brief before the Supreme Court on Wednesday arguing that DOMA is bad for business.

In the 36-page brief, the companies argue that DOMA imposes compliance burdens upon employers because they treat benefits — such as health care benefits and family leave — differently for straight married employees and gay married employees.

“Although marriages are celebrated and recognized under state law, DOMA, a federal law withholding marital benefits from some lawful marriages but not others, requires that employers treat one employee differently from another, when each is married, and each marriage is equally lawful,” the brief states. “DOMA thus impairs employer/employee relations and other business interests.”

The brief also argues that DOMA requires companies to affirm discrimination they believe is injurious to their corporate missions and is contrary to non-discrimination laws and policies.

“DOMA imposes on amici not simply the considerable burden of compliance and cost,” the brief states. “DOMA conscripts amici to become the face of its mandate that two separate castes of married persons be identified and separately treated.”

Also among the signatories is the U.S. Conference of Mayors, the official non-partisan organization of all United States cities with populations of 30,000 or more.

Philadelphia Mayor Michael Nutter, president of the U.S. Conference of Mayors and a member of the group Mayors for the Freedom to Marry, said the conference is proud to take part in the brief.

“Mayors want their citizens and businesses to prosper, and that means supporting them against discrimination – from any level of government,” Nutter said. “Married means married, and mayors and businesses agree that DOMA can’t stand.”

Another brief was filed on Wednesday by a coalition of groups representing Red States where same-sex marriage isn’t legal. The “Red State” brief, which responds to both the Prop 8 and DOMA cases, was signed by groups like Kentucky Equality Federation, Equality Virginia, the Utah Pride Center and the the Utah Pride Center and the Campaign for Southern Equality.

The 34-page brief argues that the Supreme Court should find laws related to sexual orientation should be subject to heightened scrutiny, citing laws that demean gay students in the education system as well as bans on adoption and same-sex marriage.

“The keystone of existing systems of de jure denigration of gay Americans is the denial of their right to marry,” the brief states. “It is both the crux of the matter and the root of other forms of discrimination against gay citizens. The heartbreaking message to committed, gay couples: Your love is unworthy of marriage.”

And The New York Times reported that more than two-dozen Republicans have signed onto the brief against Prop 8 being circulated by gay former Republican National Committee Chair Ken Mehlman, which received significant media attention this week. The additional reported signers include former Rep. Charles Bass of New Hampshire, who signed on as co-sponsor of DOMA repeal late last year, and Beth Myers, who was an adviser to former Republican presidential candidate Mitt Romney.

The Times initially reported that former congresswoman Marilyn Musgrave, who authored the Federal Marriage Amendment while in Congress, was another signer. But Musgrave denied to local Denver media that she signed the brief and the Times later ran a correction saying the signer was in fact B. J. Nikkel, who last year was the only Republican on the Colorado House Judiciary Committee to vote in support of civil unions and worked as district director for Musgrave.

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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