GOP DEATH WATCH

Orrin Hatch, GOP Senators File Amicus Brief Supporting DOMA

On Monday, a group of GOP senators filed a friend-of-the-court brief supporting the Defense of Marriage Act and attacking recent court decisions that have shot holes through DOMA.

The brief was submitted by a cabal of nine senators that included Saxby Chambliss (R-GA), Dan Coats (R-IN), Lindsey Graham (R-SC) and Orrin Hatch (R-UT), the former chair of the Senate Judiciary Committee, which oversees DOMA. Hatch (right) and company claim that despite recent rulings, DOMA was not passed with the intention to discriminate against gays and lesbians, merely to clarify “massive legal uncertainty” about the definition of marriage.

The District Court found that Section 3 violates the equal protection rights of same-sex couples who are married under state law. In so doing, it relied heavily on evidence from the legislative history, particularly statements made by individual members during floor debate, which it viewed as showing that DOMA was motivated by “animus” against gays and lesbians and/or the concept of same-sex marriage.

The District Court virtually ignored Congress’s interest in avoiding massive legal uncertainty, needless litigation, and inconsistent results with regard to the availability of federal benefits.

In February, U.S. District Judge Jeffrey White ruled against DOMA and commented that “the legislative history is replete with expressed animus toward gay men and lesbians.” He specifically recalled terms used in Congress during debates that called  homosexuality “depraved,” “unnatural,” and “an attack on God’s principles.”

In their brief, the senators contended that nothing “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.’”

“Judicial ‘psychoanalysis’ of legislative motives, to use Justice Cardozo’s phrase, is a highly subjective exercise, which threatens needless friction between the branches,” the brief continues. “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.”

The senators also said made note that they weren’t exactly thrilled with Judge White’s comparison of DOMA to anti-miscegenation laws.

Reaction to the brief from LGBT groups is understandably indignant: Servicemembers Legal Defense Network director Aubrey Sarvis, an Army veteran, calls their contention “absurd.”

“There is absolutely no national interest in relegating gay and lesbian citizens to second class status with the passage of the discriminatory Defense of Marriage Act, and to say that no harm was intended to LGBT Americans is absurd at best,” says Sarvis. “At worst, it’s a blatant and mean-spirited attempt to slow down the progress we are making on securing the freedom to marry for all Americans.”