Congressional Democrats late Friday joined the choir of voices calling on the U.S. Supreme Court to find a constitutional right to marriage equality by a filing a friend-of-the-court brief in support for same-sex couples challenging bans on same-sex marriage.
A total of 211 lawmakers — 167 House members and 44 senators — penned their name to the 38-page filing, which argues state prohibitions on gay nuptials are unconstitutional for the same reasons the Supreme Court ruled against the Defense of Marriage Act in 2013.
“As federal legislators who represent families across this nation, we believe that — like DOMA — state marriage bans deny our citizens the equal protection that the Constitution guarantees,” the brief says. “We urge the Court to make the Constitution’s promise of equality a reality for gay and lesbian couples throughout the nation and reverse the judgments below.”
On the House side, the brief is led by House Minority Leader Nancy Pelosi (D-Calif.), Rep. John Conyers (D-Mich.) and Jerrold Nadler (D-N.Y.). On the Senate side, Sen. Dianne Feinstein (D-Calif.) led the signature gathering efforts.
In a statement, Pelosi decried the situation under current law in which states are allowed to prohibit same-sex couples from marrying.
“Today, under federal law, many LGBT Americans still live in states that do not recognize their right to marry,” Pelosi said. “Loving same-sex couples and their families deserve to be treated with dignity, respect, and equality under the law. Now is the time for the Supreme Court to affirm that every American has the right to marry the person they love.”
Feinstein said a ruling in favor of marriage equality nationwide is the next logical step after the Supreme Court’s 2013 decision against DOMA.
“With a favorable ruling, the Supreme Court could ensure once-and-for-all that legal marriage is available to loving, committed couples, regardless of sexual orientation,” Feinstein said. “This would be a huge step toward equality in our nation.”
The brief is similar to a bicameral filing in 2013 signed by 212 congressional Democrats — 172 House members and 40 senators — urging the Supreme Court to rule against DOMA. At the time, Democrats made no filing on behalf of litigation challenging California’s Proposition 8.
A notable absence from the brief is Sen. Joe Manchin (D-W.Va.), the lone Senate Democrat who continues to oppose same-sex marriage. On Monday, a Manchin spokesperson told the Washington Blade his boss wouldn’t sign the brief and his opposition to gay nuptials is unchanged. Also not signing is Sen. Tom Udall (D-N.M.).
Jennifer Talheim, a Udall spokesperson, said her boss didn’t sign because he has a policy of not signing amicus briefs.
“Sen. Udall is a strong supporter of marriage equality,” Talheim said. “Out of respect for the constitutional separation of powers, he has a policy of not signing amicus briefs. He believes that Congress should not be in the business of telling the courts to do something that could be done legislatively.”
It remains to be seen whether congressional Republicans will weigh in with their own filing when friend-of-the-court briefs in favor of same-sex marriage marriage bans are due. Senate Minority Leader Mitch McConnell (R-Ky.) was non-committal last month when asked if he would support such a brief in cases before the Supreme Court. House Speaker John Boehner (R-Ohio) told the Washington Blade he doesn’t anticipate House Republicans will weigh in on the cases in a legal capacity.