- The Washington Times - Tuesday, August 16, 2011

Attorneys for the House of Representatives this week asked a federal court to throw out a case against the Defense of Marriage Act, saying the 1996 law is both constitutional and rational.

The U.S. Supreme Court ruled in 1972 “that two men … had no constitutional right to marry each other,” and this “binding” precedent “supports DOMA’s constitutionality,” Paul D. Clement and colleagues said in their Aug. 15 briefs in the U.S. District Court for the District of Connecticut.

DOMA was enacted for many reasons, including “employing proper caution in the face of a proposed redefinition of the centuries-old definition of marriage,” they said.

Moreover, the court need not give the case “heightened scrutiny,” as the gay plaintiffs seek.

“Sexual orientation never has been viewed as a suspect or quasi-suspect classification by the federal courts,” the attorneys said, adding that homosexuality has not been proven to be inborn and immutable, and that gays are not “politically powerless.”

The court should toss the DOMA case, they concluded, because changing marriage to something other than the union of one man and one woman “is a quintessential legislative and democratic question that should be decided by the people, not the courts.”

Mary L. Bonauto, co-counsel for the same-sex couple plaintiffs, said, “We see no new arguments in this brief that can possibly justify DOMAs discrimination against married same-sex couples.”

“We are intent on moving this case forward and ending the serious harms that our plaintiffs and other families around the country are enduring because of DOMA,” added Ms. Bonauto, director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders (GLAD) in Boston. GLAD has until Sept. 14 to offer a response.

The plaintiffs in Pederson v. Office of Personnel Management want DOMA declared unconstitutional because it caused them to be denied certain federal benefits.

In February, the Obama administration and Department of Justice said they would not defend DOMA because it was unconstitutional. The Bipartisan Legal Advisory Group of the U.S. House of Representatives stepped in and hired Mr. Clement and others to defend its law.

DOMA defines marriage in federal law as the union of one man and one woman, and it tells states that they do not have to recognize out-of-state same-sex unions.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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