Paul Clement Fires First Salvo In Defense of DOMA on Behalf of Congress


The New York Law Journal reports:

"Congress has fired back in a lawsuit challenging the constitutionality of the Defense of Marriage Act's definition of marriage as between one man and one woman.

In a motion to dismiss in the Southern District, former solicitor general Paul D. Clement and his legal team argue that the act, 1 U.S.C. §7, is entitled to a presumption of constitutionality, and that U.S. Supreme Court precedent holds that an exclusively heterosexual definition of marriage does not offend the equal protection clause.

... In his papers yesterday, Mr. Clement said that rational basis review, not heightened scrutiny, is the appropriate standard in judging the constitutionality of the statute and §3 "easily" passes that less exacting standard.

In support of that view, he argues that DOMA does not infringe on the fundamental right to marriage, that "same-sex marriage is not a fundamental right" and that "DOMA implicates federal benefits, not the right of same-sex couples to marry."

... Under the rational basis test, Mr. Clement said, Congress could have acted rationally "in the face of the unknown consequences of a proposed novel redefinition of the foundational social institution," and it could have acted rationally to "protect the public fisc" in the balance it strikes in allocating federal burdens and benefits, and providing "consistency in eligibility for federal benefits based on marital status."

Congress also could have acted rationally "to avoid creating a social understanding that begetting and rearing children is not inextricably bound up with marriage" and to "foster marriages that provide children with parents of both sexes."

Finally, Mr. Clement states "any redefinition of marriage should be left to the democratic process.

The issues will be decided by Judge Barbara Jones, who could schedule oral arguments as early as October."