February 8, 2013 at 11:58 am EST | by Chris Johnson
Senate GOP urges Supreme Court to uphold DOMA
United States Senate, Republican Party, Utah, Kentucky, Iowa, Orrin Hatch, Mitch McConnell, Chuck Grassley, gay news, Washington Blade

(from left) Sen. Orrin Hatch (R-Utah), Sen. Mitch McConnell (R-Ky.) and Sen. Chuck Grassley (R-Iowa) are among the Republicans urging the Supreme Court to uphold DOMA (Photos public domain)

Senate Republicans are arguing the Defense of Marriage Act should be upheld as constitutional because withholding federal benefits from gay couples discourages states from legalizing same-sex marriage.

The 30-page friend-of-the-court brief, filed before the U.S. Supreme Court on Jan. 29, argues that Section 3 of DOMA promotes the restriction of marriage to one man, one man while by “removing an incentive” to change state law.

“The prospect of obtaining numerous federal benefits for same-sex couples could be a tremendous weapon in the arsenal of those who would seek to gain recognition of same-sex marriage at the state level,” the brief states. “It would be particularly tempting for courts to recognize same-sex marriage in order to award federal benefits to sympathetic plaintiffs.”

The brief was filed in the case of Windsor v. United States on behalf of 10 Senate Republicans: Orrin Hatch (R-Utah), 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.).

Grassley’s participation in the brief is notable because the state he represents in the U.S. Senate, Iowa, is among the nine where same-sex marriage is legal. Also of note are the scant 10 signatures on the brief, which falls short of even one-fourth of the 45 members of the Senate GOP caucus.

Fred Sainz, vice president of communications for the Human Rights Campaign, said the brief’s argument that DOMA should be upheld to discourage efforts to legalize same-sex marriage at the state level demonstrates how “arguments made by our opponents get more tortured with every passing day.”

“This is a great example of how far down the rabbit hole they have to go to find justifications for discrimination,” Sainz said. “In essence, the senators are arguing that committed and loving gay and lesbian couples want to get married just for the benefits. Not only is it a ridiculous argument, it’s an affront to our humanity and any reasonable American would see it as such.”

The brief has three main arguments for why DOMA should be upheld: 1) DOMA didn’t change federal law, but reaffirmed the existing definition of marriage; 2) DOMA promotes a government interest in ensuring uniformity in existing law on marriage; and 3) DOMA ensures federal benefits won’t be used to “undermine traditional marriage” at the state level.

Additionally, the brief notes that one of the friends of the court, Hatch, was chair of the Senate Judiciary Committee at the time DOMA was signed into law and received assurances from the Justice Department the measure would be constitutional. The Obama administration has since said the law violates the U.S. Constitution, and won’t defend the law in court.

“If the Department believed that there was an inadequate federal interest to justify DOMA, the time to speak was in 1996, when Congress gave careful consideration to the need for DOMA,” the brief states. “Rather than urging the courts to give appropriate deference to an Act of Congress, as befits its proper role in our system of government, the Department now groundlessly impugns the motives of the overwhelming bipartisan majority that supported DOMA.”

The brief also disputes the notion that Congress passed DOMA in 1996 out of animus of the basis of the bipartisan support the measure enjoyed at the time, including from then-President Bill Clinton, who signed the measure into law. Clinton has since called for repeal of DOMA.

“The fact that DOMA passed both houses of Congress with overwhelming support across the political spectrum, and was signed by into law by President Clinton, further undercuts any attempt to characterize it as the result of unconstitutional ‘animus,'” the brief states. “Many DOMA supporters were on record as opposing discrimination against gays and lesbians.”

The attorney who signed the brief is Michael Stern, an attorney based in Fairfax, Va., who’s contributed to Republican political campaigns.

[h/t] Equality on Trial

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

  • “withholding federal benefits from interracial couples discourages states from legalizing interracial-marriages.”

    Ohhh…the irony.

  • the GOP is guaranteed good for one thing… but you have to slap an ALPO label on them first.

  • Yea the GOP is good for one thing showing the rest of the world how stupid they really are they are trying to stop loving and committed families being together this law stops same sex couples from sponsering their partners for immigration for goodness sake wake up and smell the darn roses you bunch of old fools the only ones to destroy what you see as traditional marriage is yourselfs because your own kind do not know how to take your vows seriously and use divorce as an excuse not to talk and hash things out you's jump at divorce way too quickly.

  • Stupid S@###t My Senator Says. Coming this fall to FOX.

  • Either something is constitutional or it isn't. Giving excuses as lame as giving federal benefits to gay couples will encourage states to legalize marriage equality so you have to say DOMA is constitutional is outrageous!

    You're banking on homophobia and a visceral reaction on the part of the court to influence a ruling instead of anything that really is based on the constitution.

    Even Scalia commented that if the court struck down sodomy laws as unconstituional there would be no rational basis for denying gay couples marriage. Now he'll likely pull something out of his ass to justify DOMA.

  • "DOMA ensures federal benefits won’t be used to “undermine traditional marriage” at the state level"…………………ummmm I guess this has never ever happened before Lesbians and Gays wanted to get marry………………………..I hate to see what they're going to go when our marriages are finally recognized at the federal level.


  • The GOP needs to stop their hate and more importantly, stop spreading their hate. This is sickening!

  • These GOP devils are the true face of Satan!,it's time to protest them were they are too many gay youth have died ! End bigotry now!

  • “The brief also disputes the notion that Congress passed DOMA in 1996 out of animus”

    Just read the Congressional Record of the hearings and the vote. The comments are full of animus, hatred, bigotry.

  • “DOMA ensures federal benefits won’t be used to “undermine traditional marriage”

    Eight years later, GOP asked the Congressional Budget Office if the government lost or gain money by barring same-sex marriage in all states. The answer?

    CBO Publication 15740, June 21, 2004, page 1, paragraph 2: About $1 billion (B) a year is LOST by government because of DOMA.

    That’s $17 billion (B) to 2013, and counting.

    The only thing DOMA “ensured” were some GOP election wins. That’s not happening anymore – the “issue” can’t be used to get elected or re-elected. It sure does continue to cost the government money. But, that’s what the GOP is all about.

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