DOJ Says One Man, One Woman Marriage is Unconstitutional



WASHINGTON D.C. – The U.S. Department of Justice (DOJ) filed a brief with the U.S. Supreme Court Friday arguing that a federal law defining marriage as a union between one man and one woman is unconstitutional because it discriminates against homosexuals.

The DOJ is seeking to strike down the law that defines marriage for all federal purposes.

The department argues in the brief that the law is unconstitutional under “heightened constitutional scrutiny.” In other words, the DOJ is asserting that sexual orientation should be treated as a suspect classification, like race or sex. The usual test for laws not involving suspect classifications is the “rational basis” test, which is a much lower threshold for laws to meet. Marriage laws have uniformly been tested under a “rational basis” review in the past.

The Defense of Marriage Act (DOMA), signed by President Clinton in 1996, also protects the right of any state not to recognize same-sex marriages performed elsewhere. That particular provision is not being challenged. The court will hear two cases — one challenging DOMA and the other challenging California’s marriage amendment — in March.

The DOJ filed its brief in the DOMA case, United States v. Windsor. The suit involves a New York woman required to pay federal inheritance taxes on property her late partner left her. Although their Canadian marriage is recognized in New York, it is not recognized under DOMA.

Equating homosexuality to race in terms of constitutional protection would have major implications for state and federal laws on the family.

“If the Supreme Court finds that homosexuality is entitled to ‘heightened constitutional scrutiny,’ it could mean bad news for all marriage or family laws that define or promote one man, one woman marriage, or that support the notion that children are entitled to a mom and a dad,” said CitizenLink Judicial Analyst Bruce Hausknecht.

If DOMA is struck down because the Court equates homosexuality to race and gender, it would also, down the road, cause legal issues for churches, faith-based organizations and believers across the country.

“People and organizations from faith traditions who support the biblical standards behind marriage would be viewed in the law the same as race bigots, no better than the segregationists in the Jim Crow South who built separate water fountains for whites and blacks,” Hausknecht said. “If that indeed happens, the legal consequences for the American church will be severe, and it will be with the blessing of the Supreme Court.”

The court has already made it clear in past cases that the federal definition is constitutional, said Alliance Defending Freedom (ADF) Senior Counsel Austin Nimocks.

“The wisest course is for the Supreme Court to resist demands to prematurely end the national debate over the future of marriage,” he explained. “The court should respect the freedom of both Congress and citizens to affirm a bedrock social institution that diverse cultures and faiths have honored throughout the history of Western Civilization.”