Well, this is progress. For two years, any time we saw a DOMA-related legal document submitted by Assistant Attorney General Tony West, we'd cringe. Not anymore.
The Department of Justice is now on record in support of Edie Windsor's motion for summary judgment and in opposition to John Boehner's motion to dismiss her case. I've embedded the document here.
Here's the introduction from the DOJ's "MEMORANDUM OF LAW IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INTERVENOR’S MOTION TO DISMISS," which was filed yesterday:
Plaintiff challenges the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7. Plaintiff brings this action as the executor of her late same-sex spouse’s estate, seeking a refund of $363,053.00 of federal estate taxes that – but for DOMA –the estate would not have paid due to the marital deduction.That's very strong and the rest of the memo backs it up.
Section 3 of DOMA unconstitutionally discriminates. Section 3 treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under well-established factors set forth by the Supreme Court to guide the determination whether heightened scrutiny applies to a classification that singles out a particular group, discrimination based on sexual orientation merits heightened scrutiny. Under this standard of review, Section 3 of DOMA is unconstitutional
This is the second DOMA case where DOJ has gotten involved on our side. Last month, as Lisa Keen reported, "DOJ [came] out swinging against DOMA" in Karen Golinski's case. Boehner's legal team is also defending DOMA in that case, too.
Have to say, it's good to have DOJ on our side in the fight for equality. It's the way it should have been all along.
DOMA's days are numbered. John Boehner and his taxpayer financed lawyer, Paul Clement, won't be able to save it.
